Royal Assent

The following Acts were given Royal Assent:
Critical Benchmarks (References and Administrators’ Liability) Act,
Rating (Coronavirus) and Directors Disqualification (Dissolved Companies) Act,
Armed Forces Act.

Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) (No. 6) Regulations 2021
 - Motion to Approve

Lord Kamall: Moved by Lord Kamall
That the Regulations laid before the House on 13 December be approved.
Relevant document: Instrument not yet reported by the Joint Committee on Statutory Instruments

Lord Kamall: My Lords, I beg to move that the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) (No. 6) Regulations 2021 be approved and shall also be moving the Health Protection (Coronavirus, Wearing of Face Coverings) (England) (Amendment) Regulations 2021 and the Health Protection (Coronavirus, Restrictions) (Entry to Venues and Events) (England) Regulations 2021.
Despite our progress so far and our investment in treatments, the omicron variant has been designated a variant of concern and so we must act now, as quickly as possible, to slow its spread. The UK Health Security Agency predicts that omicron will become the dominant strain within one to two weeks across the whole country. In response, the UK’s four Chief Medical Officers have raised the Covid alert level to 4, its second-highest level.
Although we do not yet have a complete picture of omicron’s severity, it has become increasingly clear that omicron is growing much faster than the previous delta variant and is spreading rapidly all around the world, so its higher transmissibility means it still threatens to overwhelm the NHS. We are seeing increased transmission rates reflected currently in case rates, and the current doubling time for omicron cases is now between two and three days. We need to act now to help slow the spread of the variant and reduce the chances of the NHS coming under unsustainable pressure, while buying time to deliver more boosters.
On 8 December, the Government announced that it was now necessary to implement plan B measures in England in response to the risks of the omicron variant. This includes: extending regulations on face coverings to make them mandatory in most indoor public settings from 10 December; asking those who can work from home to do so from 13 December; and making vaccine or test certification mandatory for entry to certain venues and events from this morning.
Today, we are debating the regulations that bring about the legal requirements for face coverings and certification. These regulations are sunsetted or due to expire on 26 January 2022, but they will be reviewed by the Government in early January. We are also debating regulations that bring important changes to self-isolation requirements to enable fully vaccinated contacts to take part in daily contact testing.
From 10 December, face coverings have been mandatory in most indoor public spaces in England. However, they are not required in hospitality settings such as cafés, restaurants and pubs, or in nightclubs. Exemptions apply—including for children aged under 11 and for those unable to wear a face covering for health or disability reasons. Evidence from the UK Health Security Agency respiratory evidence panel suggests that all types of face covering are, to some extent, effective in reducing transmission.
From today, showing the NHS Covid pass is mandatory as a condition of entry to certain settings in England. This is not a vaccination passport, and people will have different ways to show that they are eligible. Negative test results provide some assurance that an individual is not infectious when the test is taken and for a short time afterwards.
There is evidence to suggest that vaccination reduces the likelihood of infection or transmission to a small degree with delta, which continues to circulate. Early evidence suggests that vaccine effectiveness against symptomatic infection after two doses is significantly lower against omicron than against delta. Nevertheless, a moderate to high vaccine effectiveness is seen in the early period after a booster dose. Vaccine effectiveness is also likely to be higher in preventing severe, rather than mild, disease, and it continues to be vital in response to the high levels of delta cases that continue to circulate.
Covid status can also be shown through proof of a negative test taken in the previous 48 hours, which demonstrates that you are less likely to be infectious, as well as proof of medical exemption or evidence of participation in a clinical trial.
Certification will apply in a limited number of settings, including venues acting like nightclubs; indoor events with 500 or more attendees likely to stand and move around; outdoor events with 4,000 or more attendees likely to stand and move around; and all events with more than 10,000 attendees. Vaccine or test certification will not eliminate the possibility of infectious people attending or transmitting the virus in these settings, but it will help to reduce the risks.
The test, trace and self-isolate system continues to be one of the key ways to control the virus and to protect our nation. Yesterday, the Government introduced a policy of daily testing for all fully vaccinated contacts  of people who have tested positive for Covid-19. This will identify—or help to identify—the virus quickly and help to break chains of transmission without requiring large numbers of people to self-isolate. To support this, we have removed the requirement in the self-isolation regulations for all close contacts of suspected or confirmed omicron cases to self-isolate, regardless of their age or vaccination status. This was introduced as a temporary measure on 30 November. Unvaccinated adult contacts will continue to be legally required to self-isolate, unless they are participating in an approved workplace daily contact testing scheme. We will constantly monitor and review the data.
Lastly, let us all urge everyone who can have the vaccine to get boosted now. More than 24 million booster or third doses have already been administered across the UK. Our target is to offer this to every eligible adult in England by the end of December.
I thank everyone involved in the vaccination programme for their continued efforts to maintain this tremendous progress over the important weeks ahead. I understand that there are concerns among noble Lords across the House about these regulations. It is always a difficult balance and we hope we have got the balance right. I look forward to continued scrutiny by noble Lords and to their valuable contributions to this debate.

Lord Robathan: My Lords, I will start with a quote:
“It always suits Governments … to scarify the population.”
This was specifically about the ID cards Bill in 2005, when
“only a handful of principled Tories stuck up for liberty, and they were duly overwhelmed by the Government.”
The same person promised to “eat” his ID card if asked to show it to an official—so I expect that noble Lords will recognise the author of the quotes, who was then the Member of Parliament for Henley and editor of the Spectator.
Roosevelt famously said in his 1933 inaugural speech during the Depression—others had said it before—that
“the only thing we have to fear is fear itself”.
So what is going on? Why are the Government scarifying the population and stoking fear?
We know that omicron has caused far fewer deaths in South Africa than delta—in a country with only approximately 29% of its population vaccinated and a much less good health system than ours. On Monday, apparently, there were 11 Covid deaths in South Africa, down from a weekly average of 578 at the height of the delta variant infections.
Dr Coetzee, who identified the variant last month, said in a newspaper article yesterday that she was
“astonished by the extraordinary worldwide reaction in the days that followed, with Britain and some other European nations imposing heavy travel restrictions on flights from across southern Africa, as well as imposing tighter rules at home on mask-wearing, fines and extended quarantines.”
So could my noble friend tell the House, and indeed publish, what evidence the Government have that has led to these restrictions? For instance, how many deaths  has omicron caused in this country? Yesterday we were told it was one, so could the Minister also tell us the age of that unfortunate, tragic patient, and whether they had underlying health conditions? Could he tell us how many people have been hospitalised and are in ICUs because of omicron? We were told—yesterday again—that there were 10 extra patients in hospital with the variant.
This appears to be—although God knows, I do not pretend to be an authority—a less dangerous variant: I have been told that viruses will mutate in this manner. So, as omicron replaces delta, surely that is a good thing. So why are we now restricting freedoms in this way?
The impact of these restrictions includes, first, the immense damage to the economy, especially hospitality, the airline and travel industries and retail. The restrictions have led to the imposition of the highest tax burden for 70 years, and a debt burden that our children and grandchildren will spend decades paying off.
The second impact has been on our children’s and grandchildren’s education, from reception, delaying development and social skills, all the way to universities. Schools are already restricting children: I am told they are closing early for the holidays.
The third impact is isolation and loneliness. The latter particularly affects the elderly living alone, but the former is ghastly for children out of school. Yesterday another child murderer was convicted of killing her partner’s two year-old daughter. As in the case of that poor child, six year-old Arthur, it happened because of evil people—but social services have not been able to do their job properly because of lockdowns. Isolating children is madness.
The fourth impact is the consequences for mental health and the fifth is the impact on normal NHS work, with rocketing waiting lists and thousands of cancer referrals being delayed or missed. Some 5.8 million people were waiting for hospital care in September, which is the last month for which figures are available. The number of those waiting over a year for treatment has increased 237-fold in the last two years. Since April last year there have been more than 4 million fewer elective procedures. That sounds rather bland, but anyone who has been in agony waiting for a new hip will understand that it is not bland at all.
So could my noble friend tell the House what estimate the Government have made of the damage to the economy? Some reports suggest it may be between £2 billion and £4 billion per day. Is that true? How many schools have closed because of this new variant? How many children are now out of education? What estimate has Her Majesty’s Government made of the number of excess deaths because of untreated conditions since March last year?
The Prime Minister is apparently talking about another mandatory lockdown, yet we were repeatedly told that the excellent vaccine programme—for which I pay tribute to Kate Bingham and Nadhim Zahawi—would protect the nation and take us out of this nightmare. Of the two SIs against which I have put down amendments, one is about mandatory face masks and the other about Covid passports. I have asked before for a peer-reviewed, conclusive study or evidence  that these flimsy face masks limit infection. Last year we were told by government advisers that they were pointless—by Patrick Vallance, Jenny Harris and Professor Van-Tam. The last said that there was
“no evidence that general wearing of face masks by the public who are well, affects the spread of the disease in our society.”
We were even warned that masks might “trap the virus” and cause people to breathe it in, so were not a good idea. Views have changed since then, but I would like to see the evidence that changed them. I say to my noble friend that, if shown reasonable proof, I will not press my amendment.
Many Ministers have spoken against Covid passports in the past. For instance, Nadhim Zahawi, when he was Vaccine Minister in September, said that they go
“against everything I believe in”.
That is a different matter. I ask, “Why?” To the lawyers I say, “Cui bono?” Yesterday, Chris Whitty said that vaccination does not prevent infection, so those with this passport can still spread the virus. What does it achieve, except to create a sense of crisis?
I can see from the SI that
“Plan B includes measures aimed at helping control transmission”,
but, according to the Chief Medical Officer, this will not, so will the Prime Minister eat his Covid passport, as he promised to eat his ID card? What exactly is the point of them, apart from further scaring people?
I suspect that isolating people through lockdown did slow down the spread of the virus, but it certainly has not contained it. According to official statistics, there have been some 10 million cases in the UK. My view is that there have probably been two or three times more, but we can certainly conclude that the virus has defeated the restrictions. Overseas, it is the same story. So, I ask my noble friend: do lockdowns work? The idea, of course, was borrowed from China. Has hand-sanitising worked? It has now largely been discredited. Has social distancing helped? The Government are being entirely illogical in their advice and policy. For instance, could my noble friend explain the logic of encouraging people to work from home, but saying that Christmas parties are fine?
The Opposition, from whom we will hear shortly, will say that we must go further. I am afraid that it is a trait of authoritarian parties and regimes, from both the left and the right, to want to cow and scare their populations and make them more compliant and manageable. I fear the Labour Party always wants more laws to tell people what to do, although some of us believe we should be free to make our own decisions. One might have thought that the Liberal Democrats would be more freedom-loving and liberal, but they disappoint, showing that the name really is an oxymoron. The Conservative Government should be worried when their opponents support them but their own parliamentarians do not. I fear that my long-standing scepticism has now been replaced by cynicism.
I started with the Prime Minister. Let me close with the Health Secretary, who said, not six months ago on his appointment in June, that we must
“restore our freedoms—freedoms that … no Government should ever wish to curtail”,
and that
“restrictions on our freedoms must come to an end.”—[Official Report, Commons, 28/6/21; cols. 45-46.]
On 3 July, he spoke of two challenges:
“The first is how we restore our freedoms and learn to live with coronavirus… The second is to tackle the NHS backlog—something that we know is going to get far worse before it gets better…
The economic arguments for opening up are well known, but for me, the health arguments are equally compelling. The pandemic has hit some groups disproportionately hard. Rules that we have had to put in place have caused a shocking rise in domestic violence and a terrible impact on so many people’s mental health.”
I agree.

Lord Cormack: If nobody else is going to get up, I will. My Lords, some of the things my noble friend said, I entirely agree with. There has been a very real degree of confusion. It is inexplicable to have a situation in which you are told not to go to your place of work, but do go to the office party. This confusion spreads like a cancer through a community—but we are here to debate something slightly different.
Yesterday in the other place, there was a massive majority in favour of the propositions before us. There is a very important constitutional issue here. This House is not the elected House. I believe fervently in it and have made that plain on innumerable occasions, and I believe that we have a real job to do, but when the elected House has given, by a massive majority, approval to certain orders dealing with the most important issue of the day, it would be ill advised for us to vote in a contrary direction.
While I admire my noble friend’s persistence—he certainly has not come new to this subject—I urge him, as the debate takes its course, to consider very carefully before he divides the House. There is clearly no doubt that there is a very real division in the Conservative Party, with the so-called libertarian wing. However, all these things have been oversimplified; the keynote of the debates has been hyperbole, which is not really very good for sensible parliamentary debating and democracy.
The fact that the Conservative Party is divided is common knowledge. I urge those who have not done so yet to read the main leader in today’s Times and a very penetrating article by our colleague, my noble friend Lord Finkelstein, also in the Times. I ask noble Lords please to read those articles and consider carefully what they say. We are at crisis point in this country when a large number, more than a hundred—99 voted and many abstained—of the governing party refuse to support the Government. That is a very serious matter.
However, an MP is an MP, no matter what constituency he or she sits for. Each Member of Parliament has a vote of equal value. Yesterday, as I said at the beginning, a massive majority of Members of the other place decided to support what the Government are proposing—a divided Government, yes, and the division in the Government is not caused, let us be honest, just by this subject. The appalling way in which the Owen Paterson affair was handled is indicative of a Government which have lost their grip.
My noble friend the former Chief Whip—he is an old friend—may be waving his hands at me; Chief Whips are important, but parliamentary democracy is even more important. I believe, as I said, that it would be ill advised for us to vote today against what the Government have proposed. We should not seek to  contradict the other place but, with a degree of sadness perhaps, we should endorse it and certainly not divide the House.

Baroness Walmsley: My Lords, the Prime Minister has correctly pointed out that a “tidal wave” of the omicron Covid-19 virus is upon us. Yet the noble Lord, Lord Robathan, wants to do nothing. I do not agree with him. He wants to learn to live with the virus; most people do not want to have to learn to die with it.
There are three sets of regulations before us today. I will first deal with extending the mandatory wearing of face masks. We support it because face masks work. But who is monitoring or enforcing it? To give the Minister one example out of hundreds of thousands, on Monday one of my colleagues was travelling on an LNER train for two hours to come to your Lordships’ House—I must ask why we are here in person today—and only about 60% of the passengers were wearing masks and somebody behind her was coughing and spluttering for the whole two-hour journey. Nobody checked. This must be enforced.
The second set of regulations are on changing isolation rules for contacts of people testing positive. We support them but I have concerns about reported supply issues in self-administered lateral flow tests. People are just “strongly advised” to take tests for seven days after they have had contact. Will there be enough and will there be regular public information to remind people how important it is to take them? Will anyone check that they have done so?
Finally, on the regulations on restrictions on entry to crowded venues, something has to be done if people insist on entering crowded spaces for non-essential services at this dangerous time. However, this regulation is not good enough for preventing widespread transmission. Here is why: the purpose of these measures is to reduce transmission of the very contagious new omicron variant and avoid further pressure on the NHS if it produces serious disease, which we do not know yet. Measures should be based on the science. So what do we know? We are told that, to get into those venues, you can have had either two doses of the vaccine at some time or a lateral flow test within the previous 48 hours. Let us look at what those do.
When the vaccines were first administered, they gave good protection from disease within a few weeks, especially serious disease, and in some cases up to 90%. As the immunity waned over time, the boosters were developed, which now give around 75% protection to those who have them, and the NHS is doing a magnificent job getting them into people’s arms. But let us note that the regulations do not require a booster. However, a vaccinated person without a booster may now have immunity as low as 40%. Add to that the fact that we know they can still pick up the virus and pass it on to others even if they have no symptoms. Also add the fact that the scientists suspect the omicron variant might be able to avoid the vaccines most widely used in the UK, although, as I said, the booster gives good protection. However, they are not asking for proof of a booster.
On the other hand, we also know that the lateral flow tests are at least 80% accurate in detecting someone with the virus, crucially at the point when they are most contagious, and that includes the omicron variant. Let us remember that the regulation says that you can present proof either of two vaccinations, which could have been months ago, or of a lateral flow test within the previous 48 hours. I know which I would go for.
If the Government want proof of the Covid status of a person unwise enough to want to go into a crowded venue in the middle of a pandemic, why do they not insist on the widely available and 80% accurate lateral flow test rather than giving people the option of showing proof of a vaccine which may now be only 40% effective against the disease? Such people may have the virus and do not know about it, and they may pass it on to others in a crowd, whereas the person who shows a recent negative lateral flow test is highly likely not to be infected and can therefore not pass on the virus.
It’s a no-brainer. It has to be a negative lateral flow test only if we really want to reduce transmission among those who go to crowded events. I hope to persuade the Government this morning to do better. In my opinion, this regulation will not achieve its objective.

Lord Fowler: My Lords, perhaps I may intervene briefly as the last Secretary of State who had responsibility for a major epidemic, that of AIDS.
It is in no way exceptional that there should be profound differences in view among politicians and others of the way in which an epidemic or pandemic should be handled. In my day, we had chief constables openly attacking the patients and the Government. We had religious leaders, I regret to say, arguing that it was not a public health issue at all, but one of morality. We had Ministers, particularly Scottish Ministers, arguing that giving free needles to drug addicts was condoning crime, although there was absolutely no evidence that crime increased, and the example of our Government was followed worldwide. We had a Treasury which refused to provide extra resources for the pandemic.
Debate, controversy and difficulties on the way forward are absolutely nothing new in debates of this kind. The crucial question is: what advice do we follow? My view now, as then, is that we should follow the advice of the public health experts inside the Department of Health who work on these issues year after year, in particular the Chief Medical Officer. I pay particular tribute to my old CMO, Donald Acheson, and the new CMO, Chris Whitty. Chris Whitty and the Chief Scientific Adviser have done a remarkable job for this country over the last months and deserve full credit for that.
It is said that this is a question of freedom; obviously, I do not discount that argument, but surely the exercise of that freedom should not put others at risk. That seems to be a matter of common sense. It should not lead to infection being spread or hospitals having to prioritise which patients they treat because some have decided to remain unvaccinated and then become dangerously ill.
As is evident, after my spell on the Woolsack, I am now a Cross-Bencher, so I am not an automatic or whipped supporter of the Government—I am not  whipped at all. My days as Conservative Party chairman are behind me—noble Lords might be very grateful for that—and no more than noble Lords in the Labour Party do I automatically follow the lead of the Government Front Bench. However, I must say that I think their case is totally overwhelming. The success of the national vaccination programme has moved us ahead in the race to get people vaccinated in this country and worldwide but, with the new omicron variant, we have to work even harder to stay ahead. That is the lesson of the whole thing.
Last week, we learned two things about this variant. The first is that no variant of Covid-19 has spread this fast—if you want a definition of an emergency or a need for action, surely that is not a bad one. We expect the numbers to increase dramatically in the days and weeks ahead. I do not think that is seriously disputed by anybody so, again, this is an argument for action. As the Prime Minister said—for once, his language is not over the top—
“there is a tidal wave of omicron coming”.
That seems to be the view of the public health experts as well. We know that a third or booster dose provides strong protection, with analysis from the UK Health Security Agency showing that a third dose is 70% effective at preventing symptomatic infection. We expect the booster to take effect more quickly than the second dose. Again, I would have thought that this should provide an incentive to us to do what is not just the best thing in terms of public health but the right thing, as I would term it—and action is the right thing.
What I really wished to say to this House in the few minutes that I have spoken is that we should do our utmost as a House and a Parliament to appear united. It seems it is not the best day to make that case or plea, after the rather dismal vote in the House of Commons yesterday, but I hope that the House of Lords will give support to this struggle. Parliament consists of two Houses—a fact that seems to be conveniently forgotten by much of the media and the press—and this House can give a real lead as far as the handling of this pandemic is concerned.
Like the noble Lord, Lord Cormack, whose speech I enjoyed, I hope that the noble Lord who has proposed a series of amendments will not persist with them. The Government have far more support than I think they realise. Far more people outside this confined area of Parliament are signing up to the case that they are putting. Ministers should persist in their case and fight for it as strongly as they can.

Lord Rooker: My Lords, I make two preliminary points before my main point. First, it would be quite contrary to the way in which this House works and to the conventions under which we operate to throw out secondary legislation. This is just not on. We do not do it, and it would be quite wrong to attempt to do so. Secondly, I follow up on what the noble Baroness, Lady Walmsley, who spoke for the Liberal Democrats said. As many other people have done, I tried to order lateral flow tests this morning. They are not available; you cannot order them. Every week for the past two months, I have succeeded in ordering them and the pack has arrived within a couple of days. The Minister must have an answer to this fundamental issue. Now,  you cannot just walk into the chemist and collect them, or order them via a QR code, as you could do months ago—at 8.30 am today, it was not possible.
The Minister said that we are doing all this to protect people—which is true—and also to protect the NHS. I make no apology for asking why is it that we need to protect the NHS? It seems self-evident: we need to protect the NHS because it is incredibly vulnerable compared with how it was. In recent years, we have lost 17,000 beds, systematically and deliberately. Why?
I cite two or three examples from the recent NAO report on NHS backlogs pre pandemic. The OECD is the rich countries—or rather, the richer countries— of the world. In the context of the health systems within the OECD, the UK has fewer resources than many of the other rich countries. The UK has 2.4 hospital beds per 1,000 of the population. France has 5.8 and Belgium 5.5—and they are not the highest. Sweden has 2.1, which is less than the UK but, at 2.4, we are way down the list. With 8.5 nurses per 1,000 of the population, the UK is 11th on that list, whichever way you look at it. Ireland has 12.9; Germany 14; and France 11.1. This is all before the pandemic. The UK has three doctors per 1,000 of the population. Sweden has 4.3 and Spain has 4.4. They are not the highest; the highest is much greater. Finally, in 2019, we did 175 CT, MRI and PET examinations per 1,000 of the population. France did 332; Austria 349, and Belgium 313. In other words, the NHS has been deliberately run down since 2010. The other thing that has happened since 2010 is that life expectancy has stalled—read the Marmot reports. Why has life expectancy stalled since 2010? More people are dying earlier as a result of life expectancy stalling. There is something systematically wrong.
Of course, we need to carry these orders for public health reasons. I have no problem with that. I am 100% with the noble Lord, Lord Fowler. When it comes to protecting the NHS, we have to ask ourselves why it is so vulnerable. It is because we have lost out on doctors and nurses and because of the other issues that I have raised. It has been done systematically. I do not know why—a national policy has never been announced on that. We always talk about protecting the NHS. We need to ask why.
I hope that the noble Lord will not push this to a vote. He would be breaching the conventions of the way in which this House is run. I presume he is only pushing for a vote because he wants to win—you do not push for a vote if you do not want to win. Throwing out the regulations would breach the conventions and the elected House would be after us pretty damn quick—and rightly so.

Lord Hannan of Kingsclere: My Lords, I envy the moral certainty of some of the loudest voices on both sides of this debate. As the noble Lord, Lord Fowler, just explained, it is bound to be an issue on which there is a range of strong opinions. The only opinion that I really discount is glibness, in particular a facile imputation of base motives to the other side. It is absurd to argue either that the proponents of these measures are engaged in some plot to create an authoritarian panopticon state or that their opponents are all lunatic conspiracy theorists. We are debating  the most basic question of politics, going back to Aristotelian theory: how do people live together while preserving the freedom of the individual?
The answer must hinge on whether these measures are proportionate. I say that very seriously. My noble friend the Minister makes a good argument to the effect that these measures were judiciously chosen to disrupt as little as possible, in the face of an identified threat. It would be silly to dismiss the claim that we try to slow things up while increasing the opportunity for people to get a booster jab. But I keep coming back to one question: why would that logic not now apply to every future variant or, indeed, to every disease as yet unencountered by our doctors? Are we in danger of permanently tilting the balance, so that we have pre-emptive stay-at-home orders or other restrictions, on the off-chance, every time there is something that may or may not turn out to be a severe public health risk?
It is here that we have to make our stand. Over the last 18 months, what has most alarmed me is a reversal in the burden of proof. When proposing to take away people’s elemental freedoms, the onus must be on the proponents of change to prove their case. It is not for defenders of the status quo ante, defenders of our traditional freedoms, to show why restrictions are not necessary. I am not sure that has happened in this case. Even if it has, how are we not opening the door to the same reasoning in future, so that we have a see-saw of constant lockdowns or other bans and restrictions, every time something happens, just to be on the safe side? That would be a fundamental alteration in the relationship between state and citizen.
As my noble friend Lord Cormack said, this was largely a Conservative Party debate in the other place. I tuned in and watched it: I saw 17 successive Conservative speakers, and that was not for a want of people from the other side or a bias in the Chair. The debate was largely confined to the government Benches and I do not see that as a bad thing. I am proud to be a member of a party that takes questions of personal freedom seriously. That is why I finish by saying that, on this or other issues, we must not reverse the way in which we normally determine guilt or innocence. We usually have a very high burden of proof before we confine people to house arrest and we should not lower that, either in this or in more general cases. Freedom should always be our default.

Baroness Hayman: My Lords, I was interested in the comments we have just heard from the noble Lord, Lord Hannan of Kingsclere, and slightly surprised at how much of his speech I agreed with—in the sense that there is a danger from a constant stream of new variants, each provoking tactical responses in our own country. Therefore, I repeat the point I made yesterday at Question Time: it is in our national self-interest to ensure not only that people in this country are protected by vaccination but that people across the world are protected, because that will protect us in the future. It will stop us having these debates every two months, six months or year, ad infinitum.
The other point I will make in response to what the noble Lord said is that he is correct that we should not make this a debate between extreme positions, where  you are either 100% right or 100% wrong. I am not 100% in favour of the detail of everything that is in these three SIs—but I am 100% sure that I am going to vote for them if the noble Lord, Lord Robathan, decides to divide the House.
There is a process by which we reach compromises and balances: between the threat to health from the virus and that of not having an NHS functioning as it normally does; or between the threats to mental health from the fear of contracting the virus and those from isolation—not being able to participate and work, and all those things. How we draw those balances is a very delicate exercise and it starts, as others have said, with medical and scientific advice. That must be the rock and the foundation, but of course there is a political dimension—a value weighing-up and a judgment to be made about the comparative harms and how we get our best way through.
I will make one last point about the dangers of an extremist position—and I think that the noble Lord, Lord Robathan, actually takes an extremist position. The danger comes when, after the advice, the Government’s view and their proposals, and then parliamentary scrutiny and challenge, to get it as right as we can on balance, there is a sense in the public that the political is playing too large a part; and that a Government—this Government—will actually be deterred from taking the action that they need, and are advised, to take, and which we need them to take to protect ourselves.
Other noble Lords will have seen the streams of responses to the email of the noble Lord, Lord Robathan, from people saying, “I’m sorry I can’t be there but I’m in bed with Covid”. On public confidence, let us face it: the current public adherence, on which we all depend, to the regulations before us will be damaged by the fear that they are not based fundamentally on the science but on fears of losing political support in the very narrow environment in which we operate. That would undermine public confidence. As others have said, it is absolutely vital that we go through this process with scientific advice, government recommendations and parliamentary scrutiny, and do the best that we can in those circumstances.

Lord Trefgarne: My Lords, I have had the privilege of being a Member of your Lordships’ House for a very long time. I was sitting on the Benches opposite back in 1977, when my late noble friend Lord Carrington, then Leader of the Opposition, and the late Earl Jellicoe moved the cancellation of sanctions on Rhodesia. That was a mistake, and it would be a mistake to vote down the regulations today.

Baroness Foster of Oxton: My Lords, I saw a notice recently outside a restaurant. It read: “If you’d like to know how it feels to be in the hospitality sector during this Covid pandemic, just remember the ‘Titanic’ when it was sinking and the band played on.” Well, we are the band. Here we are, 21 months on, and it feels like we are going backwards.
Let us take a short trip down memory lane. Covid arrives, and it is March 2020. The Chinese authorities already knew that there was a problem several months before but did not decide to tell the WHO until the  December—but there we are. So we go into lockdown. There are daily press conferences. There is new language: “Protect the NHS”, “Hands, face, space”, “Stay at home”, “We need to flatten the curve”. We needed to do that, but it would be for only a few weeks and it was for the greater good—quite right. “Go out once a day, but only for essential goods.” Spend hours queuing in Sainsbury’s car park, two metres apart, in the rain. “Close your businesses, do not travel, do not visit your neighbour, but it’s just for a short time.” “Don’t see your boyfriend—it’s for the greater good.” “We need to close all the schools.” “Teach your children from home.” “You won’t be able to see your loved ones in a care home, but that’s also for the greater good.” And we went with that, because it was for the greater good. But we are where we are now. Finally, it was: “You can’t see your GP if you’re ill. It is too dangerous.”
So what do we do next? We tried to comply. Of those who did not comply, some were arrested. They were arrested for sitting on a bench, having a cup of coffee. Perhaps they had already been out that day. But that was not the answer. Nevertheless, we looked ahead. I am nothing if not optimistic. There was a temporary release over summer, and, by autumn, it had started again. “But it’s okay; it’ll be fine for Christmas. The vaccines are coming, so please bear with us. It’s for the greater good.” And we did, and I am a huge supporter of the vaccine programme.
But families were still separated. Millions were home alone. Meanwhile, the economy went into freefall. Mental health issues have been raised. The number of suicides increased, and NHS waiting lists have grown and grown, with people becoming more and more ill. Then it arrived; it was the silver bullet, and it was such a relief. This vaccine programme has been fantastic; I am a huge supporter.
When the vaccine arrived we were told that, once we had got the over-70s jabbed, we would start to get back to normal. But then it was the over-60s. Then we had to wait for the over-50s, the over-40s and the over-20s. Then it was the 12 to 15s.
So, 21 months on, we were looking forward to Christmas again, but then the omicron variant arrived—talk about bad timing. “But don’t worry,” said the chairman of the South African Medical Association, Dr Angelique Coetzee, “you’re the most vaccinated country on the planet, the symptoms are mild and not one practitioner has prescribed oxygen.” But here we are. We feel as though we have been marched up the hill, as though we have taken one step forward and two steps back.
The headlines roared. Mainstream media have gone into overdrive. We have 10 cases and one death, but, as my noble friend asked, what were the causes? Did that person die of it, tragic though it is, or with it? We would like that information. There are approximately 10 cases a day. But we have also had the modelling figures. By April next year, we could have between 25,000 and 75,000 deaths, and 200,000 cases a day. They are the modelling figures, which sum up where we are. It is a very difficult situation. The question is: where will it end?
We cannot keep people in perpetual fear and we cannot knee-jerk from one day to the next. The hysteria is flooding the airwaves, and the consequences on the  public are horrific. With a heavy heart, I find it difficult to support the Motions today, but I urge the Government to seriously rethink how we take this forward. I ask my noble friend to do that because, finally, coercion can never be the answer. Persuasion is much better. If we can have a frank and open discussion and hear arguments from both sides, that is how we will move forward.

Lord Bilimoria: My Lords, with plan B, while we have measures to keep the economy open, we have messages that have ended up closing much of it. There is fear and there are confusing messages, including the advice to work from home—just look at trains, buses and restaurants, which have seen a collapse in demand. We have to consider how necessary all this is, with a major South African study of 78,000 omicron cases showing that symptoms are significantly less severe than with the delta variant and that the vaccines still afford protection. There are many fewer hospitalisations and admissions to ICUs.
As president of the CBI, in July we produced a document called Living with the Virus. We are now updating it to Living with the Variants, in which we say that, if we follow these steps, there should be no necessity for a plan B or a plan C. First, there should be forward guidance to support businesses and organisations to adapt. We should prioritise mass testing over mass isolation or working from home. We should utilise all Covid-secure tools available to build employee and customer confidence. We must maximise our world-leading vaccine programme, of which we are all so proud—hats off to Kate Bingham and what she did. We should also use our antiviral programme as much as possible. We should prioritise border control so that we keep our country and economy open and, if there are restrictions, government support must move in lock-step with them.
If we follow these steps, there should be no need for a plan B or plan C. I am very proud that I was one of the first people in this country to call in August last year for lateral flow tests to be widely available. I am so glad that the Government eventually listened; they are very effective, as the noble Baroness, Lady Walmsley, said. Will the Minister confirm that the supply of lateral flow tests will be there and that they will be freely available—at the moment they are not even available—to businesses and the public until at least March next year, if not longer, as necessary?
Will he also confirm that the Government will put effort and urgency into the approval of antivirals? The best example I have is the Pfizer antiviral—tablets given for five days—which has shown in trials that it reduces hospitalisations and deaths by 89%. Can the MHRA approve drugs such as that as soon as possible? Can they be widely available, so that every GP has them and anyone, if they test positive and has symptoms, can take these tablets, which will lead to an 89% reduction in hospitalisations and deaths? That in itself could be “game over” for this wretched virus.
Can he also confirm that we will do everything possible to make sure that schools, colleges and universities are never shut again? Use daily lateral flow tests; do not have a bubble system or a million children isolating. It is completely unnecessary. The Oxford trial that  took place between April and June last year proved that using lateral flow tests is the way forward, so that staff and students do not miss a single day of school. Can the Minister please assure us of that? Our children and parents have suffered so much. We should not let our children suffer any more.

Lord Scriven: My Lords, first of all, you will have heard me coughing—but I have done PCR and lateral flow tests and it is a chest infection. But I have found that coughing quite a bit is a way to get a seat on a train at the moment.
I have not prepared a speech, because I wanted to listen to the debate and see what happened. The most powerful speech so far has been that of the noble Lord, Lord Fowler. Let us be clear: political philosophy is not a tool that you use to deal with a health crisis. You have to listen to public health advice and the people who collectively advise the Government on that public health advice. There will of course be outliers—that is the nature of science—but SAGE is the body which brings scientists together to have those discussions and come to the best collective view on what is in the best interests of keeping people safe. This is not a political discussion about freedom or trying to say that you are the purest freedom fighter of all. I have to say to the noble Lord, Lord Robathan, that political jibes about other parties’ philosophies are not what is required to bring about a safe and stable approach to keeping this country safe.
The clear issue in this is about test, trace and isolate. Those are the three pillars of public health policy, which will not end infection but will mitigate transmission by taking out as many chains of transmission as possible while people are infectious. The concept is as simple as that, but it is difficult in practice—and that is what government policy should be about.
This virus has shown itself to be complex. It mutates, which means that, at times, emergency legislation will be required—and because of this variant, emergency legislation is required. The Minister will know that I have been sceptical about some of the statutory instruments and whether they are an abuse of parliamentary procedure—I think some of them have been. However, these regulations are required in an emergency. We are talking about 2 million people potentially being affected by the end of next week, and it only takes a small proportion of those to be hospitalised to cause great damage to the NHS. The backlogs and the pressures on cancer treatment are because the health service cannot cope—not just with coronavirus but with the effects of the everyday procedures it needs to carry out.
I declare an interest: I am a non-executive director of Chesterfield Royal Hospital NHS Foundation Trust. It would be interesting to know whether those who have talked about the pressures on the health service have actually been to talk to the staff who are dealing with this, who are psychologically, as well as physically, drained. They are drained from the wave of difficulty that they have had to deal with, not just with coronavirus but the pressures of having to deal with people with ongoing problems and acute procedures. This wave is coming and it will mean that, yet again, more people will end up in intensive care and more people will die.
What can we do to try to minimise that? We test, we trace and we isolate. I have heard arguments that this is about the economy or public health, but it is not that binary; they affect each other. If you have 5 million to 6 million people infected, it affects the economy and it affects the NHS’s ability to cope with this. We have to go back to what the experts are saying and to these regulations: test, trace and isolate.
There are a couple of issues that I want to raise with the Minister, because I am a bit perplexed. I have no view that he is deliberately trying not to introduce test, trace and isolate procedures, but some of the things are contradictory and do not lead up to that approach.
The issue of self-isolation is about taking out chains of transmission, so that people are not circulating when they are most infected. But on the reduction of self-isolation and the use of lateral flow tests, paragraph 7.6 of the Explanatory Memorandum states:
“Close contacts of positive cases will be advised (but not required by the regulations as amended) to take daily tests for up to 7 days”.
That means that people are not required to test and to isolate, and there will be no tracing. What is the effect of that? I ask the Minister why it is not mandatory to test and upload those results, so test, trace and isolate can kick in. It seems to be a fundamental flaw in these regulations that people who have been in contact with somebody with Covid, and in particular with this most virulent strain, are told not to isolate and also not to test. If the key to public health is to test, trace and isolate, and we are taking out isolation and testing, how do we trace, particularly as we are told that the R rate could potentially be 3—so every person who is infected could infect another three people? This is a fundamental flaw, so will the Government look at this as a matter of urgency? It is vital.
I continue on some of the issues raised by my noble friend Lady Walmsley about the effectiveness of Covid certification. This is a chocolate teapot approach; it is not going to work. The reason for that has been laid out. If I have not had the booster, I may still have my certification and will be able to show it—but it could have been 10 or 11 months since I was vaccinated if this continues until March. That will mean I am 40% protected going into a large venue where I may actually infect people. The way to do this is a lateral flow test at the point of entry. That would not be 100% effective—nothing is in this type of pandemic—but it would be a damn sight more effective than relying on certification that is out of date, does not require a third dose and actually means that you are putting more people at risk of getting and spreading this than you would be if there was a lateral flow test on entry. Again, I urge the Government to look at this.
Finally, on the wearing of face coverings, lots of studies can be quoted but most come down to this fact: the argument is not about whether they are effective, apart from certain outliers that have not been peer-reviewed, but the extent to which they actually reduce transmission. In this case, where we are talking about numbers doubling every two days and up to 1 million or 2 million people being infected a week, it is important to do everything possible to minimise transmission, as part of a systematic approach. That is why face coverings are important.
Just as important as wearing them is who will enforce the wearing of them. It is unfair to leave it solely to private enterprise to deal with, so what is the enforcement regime? My noble friend Lady Walmsley referred to our noble friend Lady Pinnock and, similarly, I came down on an East Midlands train on Monday. I had to ask six people to put on their face coverings. One was quite verbally violent towards me. I was not doing it to be difficult; I was trying to protect people in that carriage. The evidence is that we wear masks not to protect ourselves but to try to stop the spread of a disease that could kill somebody—and I do not know who it will kill. Who is going to enforce? So I will not be voting for the amendment tabled by the noble Lord, Lord Robathan, on face coverings.
I might vote for the noble Lord’s amendment on certification simply because, for me, it is not a political issue but a practical one about whether certificates will work, because I think lateral flow tests will. Generally, I want this debate not to be about who is the purest of all in upholding a political philosophy. I want it to be about listening to SAGE and the collective view of scientists, and about doing everything possible to follow the public health view of test, trace and isolate, and trying to keep as many people as safe as possible and reducing the risk of death and serious illness to people in this country.

Lord Sterling of Plaistow: My Lords, I suggest that, if it were not for omicron, we would not be sitting here today. It is only because of omicron that we are all debating this. I have to say this. Could the messages have been better? Yes. Could the NHS have been better prepared? Possibly. But that does not matter. I completely support what my dear noble friend Lord Fowler said.
Decisions have to be made and I will finish on this point. The sooner we are able to be free—truly free—I want the opportunity for us all to get everybody back to creating wealth in this country, because that will be the real challenge before us. Unless we manage to do it, the rest, sadly, will become unnecessary.

Baroness Fox of Buckley: My Lords, I commend the 126 MPs in the other place who voted on their principles and conscience, despite heavy whipping, in yesterday’s rebellion. They formed an ad hoc Official Opposition while the formal Official Opposition did their—what did Keir Starmer call it?—“patriotic duty” in not opposing but endorsing every single one of the Government’s proposals.
Despite having previously opposed vaccine passports, now renamed by Ministers—as though that were convincing—and despite all the talk of preventing the NHS toppling over and lauding NHS workers as heroes, Labour voted for discriminatory employment practices and the brute force of job losses to coerce NHS staff into complying with a medical intervention or getting sacked.
In every wing of the Conservative Party there was a significant minority of MPs who, despite personal appeals from the Prime Minister, defied the Whip—and that means something important that this House might note.
This legislation has already been passed, so detailed scrutiny of each aspect of it is largely formal, with little meaning, but there are broader issues worth raising. One is trust. I am concerned that the Government’s response to omicron is eating away at trust in political institutions, and objective statistics and data have been misused recently, with examples of regular contradictions and different figures coming from Ministers with quick contradictions afterwards. We worry about misinformation on the web, but there has been a fair amount of it from official sources.
Also, can we remind ourselves that the Prime Minister, Boris Johnson, declared an “irreversible” road map out of lockdown? But that irreversible moment has now screeched to a halt and is reversing at rapid speed. Then we get shrill warnings that the UK is facing a “tidal wave” of omicron. Is that a bit like “one minute to midnight”? I am worried that there is overhype and too much hyperbole.
This is all in the real context that 95% of the population have antibodies. There has been a phenomenally successful vaccine take-up and, in the real-world international evidence—not speculative modelling—we are thankfully shown that, while this variant is highly transmissible, it is not as yet seen as a widespread, lethal threat by medics and scientists. And hyping up the potential threat can do real damage in other ways. If everything is an emergency, nothing is an emergency, and there is always a danger in crying wolf.
The speed of omicron is not the only danger. More worrying is the dangerous speed with which the Government immediately have recourse to invasive restrictions. This is no longer a last resort. It is almost the first policy idea at which they grab. It is not based on weighing up the broad social pros and cons. We are not presented with a detailed cost-benefit analysis; it is deployed just in case there is a worst-case scenario. There is always a hint of worse to come. It might be vaccine passports now, but in the new year there will be three-dose vaccine passports.
The Prime Minister offered a rare opportunity for a national debate. I was quite excited. A national debate is sorely needed on the whole question of the balance of risk and the priorities which society wants to take. But, no, the Prime Minister’s offer of a national debate was to discuss mandatory vaccination, of all things.
This Government have made national sovereignty a byword and sovereignty something which people understand. I remind them that this direction of travel is in danger of trashing the Enlightenment ideals of individual sovereignty and bodily autonomy. John Locke’s A Letter Concerning Toleration says,
“no man can be forced to be … healthful”
Vaccine passes are not inconvenient or a bother. I have one in my bag in the unlikely event that I might go to a nightclub. What does it mean? Most people will say, “I do not know what the fuss is about”, but there are far greater implications. Everyone’s freedom is limited if the state determines that it is contingent on accepting a medical treatment or providing medical information, or on a submission to public health priorities above all else. It is limited if we need a licence to go about our lives freely.
The noble Lord, Lord Scriven, has asked us to put our political philosophies to one side, as though noble Lords are raising matters of principle as if we are in some sort of sixth-form debating chamber. I understand that this is a caricatured view. If society is to be completely reorganised around public health, and dangerous, illiberal principles are to be set, debate should at least be encouraged. I should have thought that liberals and democrats—as in Liberal Democrats—might be quite keen on that kind of a debate.
I quote from a new document which the Government has brought forward in the last few days. It is a modern Bill of Rights. In the foreword, we are told,
“The United Kingdom has a long, proud, and diverse history of freedom. This stretches from Magna Carta in 1215”.
It then details all the proud freedom movements. It continues,
“Our proposals, which form the basis of this consultation, reflect the Government’s enduring commitment to liberty under the rule of law.”
What is the point of having documents declaring a commitment to liberty under the rule of law if liberty can be so easily dispensed with in the name of public health?
State power works. Of course it does. You can scare and threaten people into changing their behaviour, but is that what we want in our society? Many of my extended family have disagreed with my more liberal views on this question, throughout this pandemic, and have been enthusiastic adherents of lockdown. At the moment, they are not so much scared of the virus as of the next government press conference. They have become cynical about a lot of what they are being told. They are fearful that their way of life is being disrupted, rather than being immediately frightened of death.
In a recent pamphlet, Toxic Sociality: Reflections on a Pandemic, Josie Appleton makes the point that every pandemic has a social dynamic, as well as an epidemiological cause which structures the way the disease is seen and responded to. In many ways, my extended family has noticed that there is more to life than epidemiology. There has been a period when they have been able to meet publicly and socially to discuss what kind of priorities they want. It is important not to dismiss that social side. It seems to me that one clear and present danger is that social cohesion is now threatened by the kind of messaging that we are getting around the virus. Human interaction is presented as a contagion. All the unregulated examples of free conviviality and spontaneous social gatherings, such as going to a nightclub without showing a pass, are presented as toxic. Free association is being replaced by state-authorised association.
We are encouraged to view the unvaccinated as “the other”, as lesser, to be excluded from aspects of society and employment and discriminated against—not there to be encouraged or persuaded into the vaccine, but threatened. This is not making a positive case for the wonders of the vaccine and it promises to backfire.
The noble Lord, Lord Fowler, made a point about what he considered to be the role of this House. I thought that its role was to scrutinise and be critical. I hope that in the new year this House gives a lead, not just by going along with whatever we are told but  by asking questions and potentially prioritising the importance of a free society, without having to apologise for it.

Lord Thomas of Gresford: My Lords, it is only about eight miles from Buckley to Gresford, but I must say that the distance between me and the noble Baroness, Lady Fox, is infinite given the views that she takes.
I want to put a personal note into this debate. Within the last two years, I have undergone a course of chemotherapy, which destroyed my immunity to disease, according to the experts. I was told a fortnight ago that I should have another booster in addition to the booster that I have already had—in other words, four jabs altogether for me. But I come here. I am sure that the noble Lord, Lord Robathan, will approve of my coming here in answer to the Writ of Summons to contribute, to try to play a part and go on as though nothing has happened. But I come here because I rely on the common sense and collegiate responsibility of my colleagues in this place, of the doorkeepers and of the staff, and of all the people here who are doing their best to protect us.
I can tell your Lordships that it is a matter of concern to me when I see, on the opposite Benches, people who are proud not to wear something but of not wearing a mask. That makes me feel unsafe. I am sure that I am not the only person here with a compromised immunity—there must be others—who come here to try to carry on, but this is only one workplace. There are workplaces throughout this country where people are trying to carry on. They need leadership; they need confidence that the advice they receive from this House, from the other place and from the Government is soundly based on the best medical science that can be brought to bear. That science tells us that we should protect ourselves and wear masks, not just for ourselves but for the people whom we move among when we travel here—referred to by my noble friend Lord Scriven —or are going about this place.
We are protecting not just ourselves by wearing a mask but everybody else, and I do not understand a philosophy which permits people to say, “I am above all this.” “Freedom!” is the great cry. That is rubbish. I shall oppose the noble Lord, Lord Robathan, if he puts his amendment to a vote, but I plead with him to think of people like me with a compromised immunity who are trying to carry on, and to withdraw that amendment.

Lord Dobbs: My Lords, I shall try to be very brief. First, I want to thank my noble friend the Minister. He arrived in his job at a particularly difficult time. There has been turmoil, but he does his job with great sensitivity. I hope he will excuse me if I in any way ruffle his collar today. He said that we do not yet have a complete picture of the latest variant. That is absolutely the case and I want to press him on it a little. I find it difficult to simply accept that we must follow the science. What is the science? Science is not God and scientists are not messiahs. There are some pretty inadequate scientists, as well as some very gifted ones. Our job is to listen and learn, not simply follow blindly.
I have tried to listen carefully through this debate and many others, but I still do not understand the difference between a passport and a mandatory certificate—I hope the Minister will forgive me. I have been asking for a debate on passports. This is a very difficult issue which you can see from many different sides, but it is central to this policy. I have been asking for that debate ever since the start of the pandemic but we still have not had one. I still do not understand why all these new regulations have come in just days after we abandoned the red list on international travel, but there are many things that do not necessarily fit together easily in these difficult times.
There are many costs associated with any policy, no matter how well intentioned it might be. One cost I think we will be discussing for many years to come is the impact of these policies on the mental health of this nation, particularly the younger population. I wonder whether the Minister has looked at the increase in self- harm among young people or the number of attempted suicides. This is a real issue, yet we do not have impact assessments on any of these things—this is the debate we had yesterday. The Government are not doing enough to keep us informed or to allow us to debate the many issues associated with this pandemic.
I will ask the Minister three brief questions about the tidal wave that we are now experiencing. Of course, we want to be properly prepared for contingencies and cannot wait until we have answers to all the questions before we act. However, could we be told how many deaths have so far occurred from omicron in this country? I would have thought that an important, fundamental building block of any policy. Of those deaths, did the person die from omicron or simply with it? That is a very important distinction. Were those deaths of people who had been vaccinated or were they the unvaccinated? I do not know the answers to these questions and that certainly affects the way I would make up my mind about this policy. We need to know these basic figures.
As we have just heard, Covid has the capacity to ruin lives, but our reaction to it also has that capacity. We must seek a proper balance, rather than simply going blindly down the road of saying “This is the science; we must therefore do this without any debate at all”. I am grateful to my noble friend Lord Robathan for raising these issues today, because we need to debate them. If I were in his position, I suggest that I would not push this to a vote. However, he has done us a service in allowing us to discuss issues which would not otherwise have been properly discussed. We have been in pandemic circumstances for almost two years and too many outstanding questions have still not yet been answered. I hope that, through impact assessments and other means, the Government will make even more effort to answer the questions that we need to have answered.

Baroness Bennett of Manor Castle: My Lords, as an aside, I begin with a reflection on how this debate illustrates how outdated our political frames and the arrangement of our political furniture are, with the idea that we have two sides of politics. That clearly does not reflect the way our politics is operating now. I must respond to the noble Lord, Lord Dobbs,  who asked how many deaths there have been from omicron; he appears to have learned nothing from the past two years about the exponential spread of viruses and the delay between infection, hospitalisation and death.
I caught the No. 29 bus down this morning. I saw, as I have seen pretty well throughout the last two years, the public in advance of where the Government thought they might be. The bus was largely empty. Everyone on it was wearing a mask properly. I was seeking to speak after the noble Lord, Lord Thomas of Gresford, because I wanted to say how honoured I would have been to do so and to express my respect for his presence and speech today. It is an utter rebuttal to the claim of the noble Lord, Lord Robathan, that we are all free to make our own decisions. None of us is free to choose whether or not to breathe. We all have to breathe the air in this Chamber and wherever we go.
That brings me to the first of my two points. We could be debating some very different SIs today, ones based on both the science and a response I had from the noble Lord, Lord Bethell, in July, when he was sitting where the Minister is now. The noble Lord said then that
“ventilation is critical—but it is also challenging.”—[Official Report, 21/7/21; col. 335.]
Instead of these SIs, we could be debating SIs that allowed for an emergency scheme for entertainment premises—concert halls and theatres—to have on the door, as restaurants do for food health, a rating for ventilation. People would be able to choose which venues they went into based on the real measure of risk that they presented. We could see another SI that would have an emergency programme, as the National Education Union has for many months been calling for, of installation in schools of not just carbon dioxide meters but ventilation and filtration systems. We are seeing isolated trials popping up, but not those things.
However, we cannot see emergency SIs such as those because such long-term schemes would take many months to implement. But they are long-term schemes that should have been implemented many months ago. I turn to a British Medical Journal editorial from July, which says that
“workplaces, healthcare facilities and education providers”
must
“pay greater attention to the cleanliness of the air”.
This editorial was written by world-leading microbiologists and engineers.
Over the past two years we have seen a public who have done amazing things, shown an amazing grasp of reality and adapted their behaviour accordingly. Sadly, we have seen a Government which have not lived up to their responsibilities and have been totally focused on one prong of defence—vaccination. I absolutely support and agree with the huge drive for vaccination, like many Members of your Lordships’ House; my booster is booked for next Monday. I am holding out for that and hoping to survive until that point.
I turn to the other SI, on vaccine passports. The noble Baroness, Lady Walmsley, and the noble Lord, Lord Scriven, made some very powerful points about the medical faults in this. I will pick up another concern, which I raised yesterday when we were talking about vaccination for deployment in health and care.  If we send a message to people that vaccination is something that we have to force them to do, it risks building resistance and being counterproductive. We want to get to a situation where every person for whom it is medically possible is vaccinated, and has chosen to be. That requires a fairly large ask—trust in the Government—but above all it requires a programme of education and outreach, which we have clearly not seen nearly enough of.
In the other place, the Green MP Caroline Lucas, while expressing great reluctance, voted with those opposing the vaccine passport SI before us. I must admit I feel rather torn at the moment, because I think the SI is dangerous and counterproductive, but I feel extremely uncomfortable with people making different arguments grouped in the same space, so I have not quite decided what to do. But I want to see a Government allowing people to keep themselves safe by taking on what the noble Lord, Lord Bethell, accepted was crucial in July, which is ventilation.
I also pick up the point from the noble Baroness, Lady Hayman, on global scale. No one is safe until everyone is safe. The Government are not doing nearly enough to get vaccines around the world, so we will see more risks. In picking up on how people can keep themselves safe, whatever the Government pass, we will see people not going to entertainment venues and rearranging their lives. That means that people and businesses will need public support, on which I agree with the noble Lord, Lord Blencathra. We also need people to be able to keep other people safe, which means proper and full sickness payments when they have to self-isolate, as they should.

Lord Birt: My Lords, this is overwhelmingly a public health issue and, at heart, not a complex one. We all agree that we should constrain our freedoms only for a good reason. Not drinking and driving at the same time would be a good reason. The good reason here is the overwhelming nature of the scientific advice. I have participated, as have many of your Lordships, in the briefings we have had from all the leading scientists who advise the Government. The airwaves are full of professors who know their stuff and who also advise, and there is a real scientific consensus about the problem we face.
It is simple at heart: this particular variant of the virus is much more transmissible than any variant we have seen before, and the scientists are clear that they do not yet know how severe its symptoms will be. We can all be hopeful; there is some evidence from South Africa that the symptoms are mild, but the scientists tell us not to jump to conclusions, because you cannot easily translate the South African experience to our own. Its population is far younger and has hitherto been much more infected by other forms of the virus. We cannot assume that what has happened in South Africa will happen here.
We have used the word “exponential”; it is a powerful word. It means, as the scientific modelling has demonstrated, that the numbers double every few days. You do not need more than O-level maths to know that, after not many days, you get to a very large number indeed. If the symptoms turn out to be severe,  the combination of those large numbers and more severe symptoms would be devastating and the NHS would be overwhelmed. That is why this action is prudential. It is not definitive, but is prudential and entirely justified. I support the Government.

Bishop of Leeds: My Lords, in one sense I hesitate to contribute to this debate, which has been very interesting for lots of reasons. We sit in a Chamber where we contribute to the making of law, which is precisely about the infringement of people’s freedoms—that is what law is—so I struggle with the arguments about freedom. Yesterday or the day before we talked about infringing people’s freedoms regarding the right to protest, for example. I hope to hear the same arguments about the importance of freedom when we get to some of those very restrictive debates.
There are two issues here that we must not confuse. One is the public health issue and the demands of that; I hear everything that has been said about good scientists and bad scientists, and I totally agree that science is not God and scientists are not messiahs—noble Lords would expect me to say that anyway—but our job is to interpret the science with a view to then taking responsible decisions on behalf of other people. Like the noble Lord, Lord Thomas of Gresford, and his immuno- compromised situation, my wife up in Leeds is immuno- compromised because of radical chemotherapy for cancer at the moment. I had to think very carefully about whether I should come down here, and I question how it will be when I go back.
There is the public health issue, but we have heard in the last couple of days, from all sides of the House, remonstrations about the culture in which we are now exercising our responsibilities, with language such as “government contempt” for parliamentary process and so on. I question why we are still hearing announcements on television, rather than announcements being made in Parliament, subject to scrutiny and debate, on matters of such public importance. However, this is not the first time, and to protest about it in this respect is to beg the question why we have not protested about it in respect of other legislation where the same criteria do not seem to apply. I agree with the noble Baroness, Lady Fox, about the erosion of trust, but this has not caused the erosion of trust. What we are dealing with now plays into a pool in which we swim, in which trust has been eroded over time by a scratching away of what we might consider the conventions and norms of our parliamentary democracy.
The question I want to put to the Minister comes back to something that—I apologise, I cannot remember who used the language earlier—was said about the difference between tactics and strategy. Strategy is the plumbing that gets us towards the end that we want to achieve. What we seem to be seeing at the moment are reactive tactical decisions, which are not subject to the normal scrutiny that we would expect in this place. What is the strategy in which the tactics make some coherent sense? That can be determined only when we articulate what the end is that the strategy is intended to achieve.
I fear that I have not added anything new to this debate, but I think that we need to be clear about some of the issues that I have raised.

Lord Davies of Brixton: My Lords, I have three points. First, I was struck that the noble Lord, Lord Robathan, introduced his speech by referring to the scarifying effect of the debate in the Commons yesterday. Subsequently he went on—as have other speakers—to try to scare us about these regulations. It has been, to a large extent, a scare story about these proposed regulations. In truth, they are oh-so limited in their extent. It is quite possible that we might have to introduce stronger restrictions, so what we are being scared about is a slippery slope, that sooner or later these regulations will lead to an oppressive state. Well, they do not—they are just keeping us a little bit safer.
Secondly, on the idea that omicron is milder, we do not yet know that it is milder in the UK context. What we do know is that it is much more invasive. It will infect many more people. Even if it is milder—which we do not yet know—a milder effect on a much larger number may place a heavier burden on the health service. There is even the perverse, non-intuitive effect that a milder disease could place a heavier burden on the health service because, sad though it is to say, if people do not die so quickly of this disease, they will be in hospital for longer.
Thirdly, the debate on vaccine passports has been mentioned. I do not quite understand what people are saying, because I already have a vaccine passport—I guess that the great majority of people in this Chamber have one. I have used my vaccine passport. These regulations are saying that, in certain circumstances, that is one way of showing that there are good odds of you not being as infectious. I agree that there is a slippery slope here—I am totally against ID cards—but this information is already contained in the vaccine passports. The regulations are about how they should be used.

Baroness Garden of Frognal: My Lords, I am getting indications from the Chief Whip that we should move to the winding Front-Benchers. The noble Baroness, Lady Brinton, will be speaking remotely. I invite her to speak for the Liberal Democrats.

Baroness Brinton: My Lords, I declare my interest as a chair of the All-Party Group on Coronavirus. I thank the Minister for his speech on the three SIs before your Lordships’ House today.
Plan B was published four months ago. It was absolutely evident, first from the Secretary of State for Health’s announcement on Friday and then from the Prime Minister’s speech on Sunday, that no real planning has been going on behind the scenes in the department. Before we get into the practical consequences of these regulations, from these Benches we want once again to join in the strongest objection to the slack way in which the regulations and the Explanatory Memoranda are written.
The right reverend Prelate was right to say that we accept that late legislation may need to be written at pace, but this is communication at its worst and, of course, it cannot go through the usual scrutiny from  the Secondary Legislation Scrutiny Committee and others. This goes hand in hand with Ministers’ messaging to the wider public, from the Prime Minister down. All because he is worried about certain parts of his party, he has once again announced mitigations too late, which inevitably result in further restrictions and in omicron being allowed to move really fast through our society.
The noble Lord, Lord Hannan, said that he worries this will be the case with every new variant we go through. That has not been the reality so far. What is different about omicron is how quickly transmission has doubled, which, by the way, without mitigations, will have an effect on the economy, because businesses are already seeing staff go off sick. If we have 2 million people with omicron by the end of the year, and that continues to increase at the same doubling rate every two days, we will find that the economy, schools, societies, our GP surgeries, ambulances and hospitals struggle even more than they are now. On Tuesday, at the All-Party Group on Coronavirus, one GP said to us that, on the previous day, every single doctor in her practice had tested positive. That meant that there were no doctors available to work, other than by Zoom.
We are learning about omicron because it is very new to us. The evidence of its exponential growth so far is concerning. The noble Baroness, Lady Foster, said that not one patient in South Africa has had oxygen. This is not true. It is true that there are fewer people in hospital, but some have severe disease. The number of omicron critical care beds is going up. At the end of November, 291 people in hospital were on oxygen. Two weeks later, it is nearly 900. The numbers in ICU have also doubled. These figures are from the Covid dashboard on the Spectator website.
From all Benches, we have heard agreement with the Prime Minister’s confused lines in the sand—for example, face masks must be worn in shops, but not in pubs and restaurants. Even if omicron is less dangerous—by which I think the noble Lord, Lord Robathan, means that there are fewer people with severe disease—its key elements are higher transmission and the doubling of cases. If there are fewer hospital admissions per 100,000, the already beleaguered NHS will have to find many more hospital beds than were needed in January 2021. This is what the doctors are advising us.
The noble Lord, Lord Robathan, constantly repeats his mantra that the only deaths from Covid are in the over-80s or among those with underlying conditions. In a recent debate, he asked if anyone knew anyone under the age of 80 who had died. Last week, a dear friend died of Covid after just four days in hospital. She was much younger than I am. Another friend in his 40s, who had a lung transplant earlier this year, is back in ICU with Covid. He does not know where he caught it because he has been very careful. Is the noble Lord really saying that there should be no mitigations to keep the vulnerable safe? This is the consequence of removing all these mitigations.
My noble friend Lord Thomas of Gresford spoke movingly about his compromised immune system. I too am in this position, though for a different reason. My medical advice is not to come out at the moment.
The 800,000 clinically extremely vulnerable have not had one word of guidance in the last week. It is not good enough to say that shielding ended in July. This group is at high risk and needs advice. When will this be evidenced? I think that even the noble Lord, Lord Robathan, would recognise that some people are at high risk. Shame on the Government for not getting in touch with them at all.
Other noble Lords have spoken about those with long Covid, including children. On schools, we have been asking since last year for air filtration units in classrooms. This has only just happened in the last week. Until now, the Government have been talking about CO2 monitors, but the public health need in our schools is for air filtration units.
The first regulation is about self-isolation and moving to a daily lateral flow test. If it is negative, you can leave your isolation. We say that test and trace must remain the key defence in fighting Covid—particularly omicron—not least because of the somewhat reduced vaccine efficacy with this variant. The level of transmission of omicron is so high that this is a public health precaution. We disagree, therefore, with the fatal amendment laid by the noble Lord, Lord Robathan, which would remove this vital, basic, public health rule of self-isolation and testing.
The second SI on entry to venues and events creates a broader Covid pass, vaccine or test result, than the previously proposed vaccine pass. We have consistently opposed vaccine passports—first, for public health reasons. Importantly, vaccine passes give people a false sense of security, especially as it is possible to catch Covid and pass it on, even if you are double-jabbed. People cannot tell if their vaccine immunity is waning. We just do not like the reliance on that. We also do not want vaccine passports creeping in by the back door, as the noble Baroness, Lady Bennett, outlined. Our principal concern with this SI is about public health. This hotch-potch Covid pass is a muddle.
We agree with the use of lateral flow tests. They are highly accurate. Researchers from University College London found that they are more than 80% effective at detecting any level of Covid-19 infection. They are likely to be more than 90% effective at detecting who is most infectious when they use the test. None of us wants lockdown, particularly the noble Lord, Lord Robathan, and his colleagues, but I struggle to understand why those who do not want lockdown will not accept lateral flow tests as a mechanism to help reduce transmission.
We cannot support the noble Lord’s fatal amendment on the issue of flow tests, but we are deeply unhappy that the Government are relying on the vaccine element of the Covid pass at a time when we need to reduce transmission by the tried and tested test, trace and isolate system. So, if a vote is called, we will not support the Government’s proposals for Covid passes—although for very different reasons from those of the noble Lord, Lord Robathan.
The third SI, on the wearing of face coverings, expands the legal requirement to wear face coverings when in shops, on public transport or in transport hubs, banks, places of worship, public areas in hotels,  hospitals and museums. But it does not extend face masks to hospitality and some other venues. My noble friend Lord Scriven has spoken on the need for face masks. He is absolutely right.
Liberal Democrats have consistently argued for the regular use of face masks, and for hand washing and social distancing. The WHO and our doctors and scientists still say that those three basic elements, along with test, trace and isolate, are absolutely key. This is particularly important with omicron, given how fast the number of cases is growing. So, although we want the Government to go further, we will support this SI.
There are rumours that further restrictions may come in. Can I ask the Minister whether Parliament will be recalled if further restrictions are put in place during Recess?
To conclude, the noble Lord, Lord Robathan, has argued that there is absolutely no evidence that face masks work at all, and his fatal amendment would remove the requirement for any face masks. While we would like masks in more places, we cannot vote for the removal of the requirement to wear masks, so we would vote against his fatal amendment. We believe that the noble Lord is wrong to say that this is an issue of freedom. With freedom come responsibilities to minimise spread and to keep all people safe, especially the most vulnerable. It is shameful that parts of the Government’s SIs do not do this.
But above all, I echo the comments of many Peers from all sides of the House that these SIs are chaotic and confusing—but parts of them are absolutely vital in our public health fight against Covid. The noble Lord, Lord Cormack is right that this House should not use the fatal amendment procedure, but we will continue to hold this Government to account.

Baroness Thornton: My Lords, this has been a proper House of Lords debate and I thank the Minister for introducing the regulations with such clarity. I need to declare an interest as a non-executive director of an NHS hospital.
I would like to start my remarks by quoting my honourable friend Wes Streeting, the shadow Secretary of State for Health and Social Care, who said yesterday that
“it should not be for me, as shadow Secretary of State, to point out”
to some Conservative MPs, following remarks made in the media in recent days,
“that we are not living in the 1930s and that the Secretary of State and his team are not Nazis.”—[Official Report,Commons, 14/12/21; col 954.]
It is sad that my honourable friend felt that he needed to say that. Our history is peppered with examples of where we required citizens to act in a way that served both their own self-interest and the interests of others. That does not make us a totalitarian state. I believe that the public are less outraged by the fact that some obligations are being placed on them than by the antics of those who blatantly and arrogantly imagine that the obligations do not apply to them.
On these Benches we will be supporting the Government today, as we did yesterday, and we will vote with the Government if the noble Lord, Lord Robathan,  chooses to test the opinion of the House on either of the fatal amendments before us. Actually, the noble Lord said that these Benches would go further than the Motions before us. That is not true—but what is certainly true is that we have tended to be two or three weeks ahead of the Government. We have said “We think you need to do this, that or the other”—and I can testify to this, having been here for nearly two years, saying this —and the Government have said “No, no, no”, and two or three weeks later that is exactly what happens.
We will act in the national interest, as we have done throughout the pandemic, putting public health before party politics, by supporting the Motions under consideration now. Our task today—as it has been throughout the pandemic—is to consider what is best for the health of our nation and how to discharge our responsibility to protect our NHS.
The noble Lord, Lord Fowler, absolutely nailed it when he said that we had to listen to the CMO, the CSO, the other scientists and the public health experts, and follow the course of action that they were recommending. This was echoed by the noble Baroness, Lady Hayman, who said that we should be listening to the advice we are given. My noble friend Lord Davies put these regulations into proportion in terms of what they are seeking to achieve. There is no doubt that sacrifices have impacted on lives, livelihoods and liberties; that is why noble Lords need to scrutinise and question how the Government are dealing with this issue, or indeed mishandling it. I say to the noble Lord, Lord Robathan, and other noble Lords that we would be having this debate today whether or not he had put down his amendments.
On Sunday the Prime Minister made a totally unnecessary broadcast which served to panic people and create worry and confusion. Presumably he was trying to re-establish leadership credibility for himself, which clearly did not work with his own Conservative Benches. The broadcast was irresponsible in its lack of preparedness and clarity. As well as displeasing Mr Speaker, as the Prime Minister tends to do, it held Parliament in contempt yet again.
The lack of clarity is clear, for example, as NHS England and the Prime Minister have made conflicting promises on the booster rollout, leaving plans to deal with the rapid spread of omicron mired in chaos and confusion. On Sunday evening, the Prime Minister said:
“Everyone eligible aged 18 and over in England will have the chance to get their booster before the New Year.”
However, the NHS has promised a different target, pledging to offer all adults the chance to book a booster rather than receive one. Pressed on the conflicting advice, NHS England said:
“The NHS vaccination programme will offer every adult the chance to book a COVID-19 booster vaccine by the end of the year”.
Perhaps the Minister could clarify for the House which it is. If the Prime Minister has promised 1 million vaccinations a day, how is that supposed to be achieved?
I think it was even worse for local government than for the NHS. A local council leader in London, with a London-wide strategic role, said that 72 hours’ notice  would have been helpful. It is not the need to up the vax and testing capability but the lack of planning—hence no tests, no testing ability and vaccinations not available. There was not one mention of local government in the Statement we heard on Monday. Had the relevant Government departments talked to local government, and when did they do that? It begs the question: did the NHS even know about Sunday’s statement before it was made?
We cannot yet be sure about the severity of the omicron variant, but we can be certain, as many noble Lords have said, that it is spreading faster than any other variant. Even if a smaller proportion of omicron victims are hospitalised, the rapid advance of the virus through the population could see large numbers of people admitted to hospital during the months in which the NHS is already under the greatest pressure. The winter months present pressures on the NHS in any normal year, and we know that this is far from a normal year.
The NHS is contending with winter pressures, a serious backlog, the delta variant and now this variant. Many of the challenges are understandable, given the unprecedented challenge of the Covid-19 pandemic, but we have got to be honest and acknowledge that confronting them has been made much harder because the country went into the pandemic with waiting lists already at 4.5 million, 100,000 NHS staff vacancies and a shortage of 112,000 staff in social care. My noble friend Lord Rooker was quite correct on that. We support the NHS and care services in the task they have been set. Let me say from these Benches to every NHS worker, every GP, every pharmacist, every public health official in local government, every member of the Armed Forces and every volunteer stepping up to meet this enormous task that we are with them 100% and thank them again.
The measures put forward for consideration today are an attempt to slow the spread of the virus, while trying to protect Christmas so that people can enjoy the festive season. They are about limiting interactions in the workplace, wearing face coverings in settings where the virus finds it easiest to spread, testing before we attend large indoor gatherings, and getting behind the booster rollout to ensure that everyone who can be protected is protected.
The goal in the end must be to learn to live with the virus. That means effective vaccination, antiviral treatments and public health measures that have a minimal impact on our lives, jobs and businesses. No one enjoys wearing a mask, but it is nothing compared with the costs that more draconian restrictions have for our lives, livelihoods and liberties. Masks are simply a price worth paying for our freedom to go out and live our lives during this pandemic.
On the introduction of a Covid pass for large indoor gatherings, the Labour Party argued against vaccine passports without the option of showing a negative test. Further, we argued that such passes should not be required for access to essential services. On both counts, I am pleased to say that the Government listened and amended the proposals, so we will support this measure today. I regret that colleagues on the Liberal Democrat Benches do not feel able to do so,  but let me be clear: we in the Labour Party support Covid passes because we support British businesses. We want to give people the confidence to go out and about—to go to venues and to the theatre—despite the presence of this virus.
With passes and lateral flow tests, venues can operate at 100% capacity. Look at Italy, France and Denmark—countries with strict Covid rules. All have seen their retail and recreation sectors fare far better than those in the UK. However, for the passes to work, people must be able to access tests readily and easily. We cannot continue in this situation where tests are out of stock, so I ask the Minister whether this has been resolved or when it will be.
For months, we have called for workers to be given the flexibility to work from home and we support the guidance to work from home where possible. However, how does the Minister explain the contradiction that many noble Lords have asked about, which is why, at the same time, the Government are allowing them to go to Christmas parties? By limiting the interactions people have at work and by lowering infections, we hope to preserve their ability to go ahead with social events anyway.
Noble Lords have talked about ventilation in schools. We know that young people have borne the brunt of this pandemic, and we owe it to them and their education to support them and staff to make sure our schools are properly ventilated. The Christmas holidays seem to us to be an ideal time to get young people vaccinated. When does the Minister expect to know about this matter and share it with the House?
I hope this is my last contribution on Covid this year. I therefore end by wishing all noble Lords a safe and happy Christmas.

Lord Kamall: I start by thanking noble Lords for their valuable contributions to this debate. They showed the very best of debate in this place, in the range of views covered—some political, some scientific and some challenging the Government on constitutional issues. This demonstrates the importance of these discussions and I welcome all contributions, whether or not I agree with them. That is the purpose of debate and discussion.
I remind some of my noble friends behind me and other noble Lords why we have acted now and gone to plan B. We want to slow the spread of the virus, after looking at the replication rate; we want to buy time for more people, especially the older and more vulnerable, to get their booster dose; and we want to give our experts crucial time to gather and understand the data about omicron.
Noble Lords, and indeed noble friends, look at the experience of South Africa. As the noble Lord, Lord Birt, and others have said, its experience is different. It has a younger population, with an average age of about 29, when our average age is in the mid to high 40s. Given our experience at the beginning of the Covid pandemic, when a disproportionate number of older people died, surely it is right that we collect data to make sure that the most vulnerable people are safe before we go forward.
I turn to some specific points raised by noble Lords. As I said, my noble friend Lord Robathan asked about the data from Africa, which we will continue to monitor. We will monitor whether it is different or milder here.
The noble Baroness, Lady Bennett, mentioned the risk of exponential growth and I thank her for making that point. We do not want to see waiting times and patient numbers starting to overwhelm hospitals. By the time we had waited for exact data, it might be too late. The noble Lord, Lord Davies, rightly spoke about the limited data available. I assure the House that we will continue to review the data as it comes in.
As we have looked at the response, we have always tried to strike the right balance and act in a proportionate way. We have looked at the scientific evidence, including evidence from different scientists—they have not always agreed. We have looked at the differences within the health profession and at the concerns about lockdown and the effect of some of the restrictions on the mental health of our nation. We have also looked at the unintended consequences, including all the operations and diagnoses that have been delayed. I admit that it has been a difficult balance and that, whatever we do and whichever way we come down, we will always have critics—rightly so—but we have tried to get the balance right.
My noble friends Lord Robathan and Lady Foster raised concerns about the restrictions on social services, elective care, hospitality and the wider economy. Elective care recovery remains a priority and I have previously announced increased investment in tackling the backlog and waiting lists. As I have said previously, between 70% and 80% of those on waiting lists are waiting for diagnoses, rather than surgery. Of those waiting for surgery, about 80% do not need to stay overnight as their surgery can be completed without an overnight stay.
We need to protect our health service from the pressures caused by the new variant of Covid-19 and prioritise vaccinations and urgent appointments. My noble friend Lord Robathan and the noble Baroness, Lady Fox, asked why we are taking action now. On Sunday, the UK’s Chief Medical Officer increased the UK alert level from 3 to 4 because of the rise in cases and because the doubling rate is every couple of days. That is why it is right to act now, while we collect more data.
My noble friend Lord Dobbs asked several questions about cases of the omicron variant in the UK. While the number of hospitalisations and deaths from omicron may not seem troubling to some now in comparison with previous waves, the measures we have implemented to stem hospitalisations and deaths have been introduced to make sure that we do not overwhelm our health service.
The noble Lord, Lord Scriven, asked about the value of vaccine or test certification in the light of omicron. This is why it is so important that everyone gets boosted now and why my right honourable friend the Secretary of State set out that boosters will be included in the definition of a full course of vaccination once all adults have had the opportunity to get the jab. For now, the definition remains at two doses, but once  a sufficient proportion of the population has had the booster vaccine, it will move to three. Vaccine effectiveness is likely to be higher for preventing severe rather than mild disease and, of course, it continues to be vital in relation to the high levels of delta cases which continue to circulate.
I say to the noble Baroness, Lady Fox, that certification is not a vaccine passport. We believe it is important that everyone has the option to access settings and that is why, alongside vaccination, a recent test from within 48 hours and medical or clinical trial exemptions will also be accepted.
My noble friend Lord Robathan asked about evidence on the effectiveness of face coverings. Evidence from the UK Health Security Agency respiratory evidence panel suggests that all types of face coverings are, to some extent, effective in reducing transmission of Covid-19, through a combination of source control and protection for the wearer. According to SAGE, face coverings are likely to reduce transmission through all routes by partially reducing the emission of and/or exposure to the full range of aerosols and droplets that carry the virus, including those that remain airborne and those that deposit on surfaces.
The noble Baroness, Lady Walmsley, and the noble Lord, Lord Scriven, raised the issue of compliance with regulations concerning face coverings. When face coverings were previously mandatory, our assessment showed that compliance was high. We are grateful for the public’s willingness to comply with the rules, which help to keep everybody safe, and expect similarly high levels of compliance as the public get used to these new requirements. Turning to enforcement, the police can enforce the law and issue fixed penalty notices. This includes the British Transport Police, who work and operate on the railways.
The noble Baroness, Lady Walmsley, also queried the value of certification. Introducing vaccine or test certification will help reduce risks in associated settings when compared with no intervention. It has been correctly stated that a negative test result provides some assurance that the individual is not infectious when the test is taken and for a short time afterwards. However, vaccine effectiveness is likely to be higher for preventing severe rather than mild disease for omicron and of course continues to be vital in response to the high level of delta cases.
The noble Baroness, Lady Walmsley, asked about compliance and enforcement of daily testing. I hear her concerns. To implement daily testing for contacts as quickly as possible, we have taken a pragmatic approach. As in all these things, we have once again to address a balance, but we strongly advise that people follow the advice to take daily lateral flow tests. Noble Lords will agree that most people will want to do the right thing to protect their loved ones and communities, with peer pressure from friends and family to help manage the pandemic so we can all live as normal a life as possible.
The noble Lord, Lord Bilimoria, rightly noted the importance of lateral flow tests in our pandemic response and the latest evidence of the efficacy of oral antivirals. The UK was the first country in the world to approve a Covid-19 antiviral; we are now also the first to begin  rolling out oral antivirals in the community. UK patients have been receiving molnupiravir through a new national study called PANORAMIC, which opened on 8 December. I strongly encourage all eligible patients to sign up for this national study, to help the UK once again gather more data on how antivirals work in a predominantly vaccinated population.
The noble Baroness, Lady Walmsley, and the noble Lord, Lord Rooker, raised concerns about testing capacity in the face of increased demand. I reassure the House that there is no shortage of lateral flow tests. The issue has been one of distribution. I was in a meeting earlier this week with my right honourable friend the Secretary of State; he said that we have the numbers and the orders, we just have to make sure that we get them out everywhere. Everyone who needs a lateral flow test will be able to collect them at a local pharmacy, at some community sites and at some schools and colleges. Tests should become available for delivery every few hours. We are issuing record numbers of rapid test kits to people in zones across the country and are urgently working to expand our delivery capacity and improve distribution to the right places.
The noble Lord, Lord Rooker, my noble friend Lord Robathan and the noble Baroness, Lady Fox, asked what the Government are doing to protect the health service, not only in the context of Covid. The Government are committed to giving the NHS what it needs. In previous pronouncements in this place, I have gone into details on some of the investment into the new UK-wide health and social care levy, which provides £23 billion for the NHS, so I will not go into further detail on it here.
I echo the thanks of the noble Baroness, Lady Bennett, to the noble Lord, Lord Thomas, for his moving words and the importance of these measures in protecting the most vulnerable in our society. The noble Lord, Lord Fowler, spoke eloquently about the expertise of scientific advisers and their invaluable input throughout the pandemic, based on his own experience of championing treatments for AIDS over many years. I completely agree with the noble Lord and thank him for his advice. If he is ever tempted to jump back on to our Benches, he would be more than welcome—I am not sure I have done him any favours there.
The noble Baroness, Lady Hayman, spoke about the importance of this legislation given the balance between the threat posed by the virus and the threat to disruption of NHS services. I agree that we must balance these things; each of us may see that balance differently, and we must make a decision based on the balance of different factors. We will not all come to the same conclusions, but I hope noble Lords will acknowledge that we try our best to get the balance right—we may not always get it right, but we try.
I also thank noble Lords for their incisive, impassioned contributions to this and previous debates on other Covid-19 legislation. It would be remiss of me not to reply to the noble Baroness, Lady Brinton, on the immunosuppressed and shielding. The decision to end shielding was based on there being far more available information on the virus and what makes individuals more or less vulnerable. I hope I can give her and some of the charities we are talking to more information at our meeting tomorrow. I am grateful to Jonathan Van-Tam  for making himself available for that meeting to discuss these issues, and I will make sure that noble Lords are aware of it.
On ventilation, as raised by the noble Baronesses, Lady Bennett, Lady Brinton and Lady Thornton, we have provided CO2 monitors to state-funded education settings. We continue to look at ventilation in education, from not only air units but open windows. However, we also understand, as many noble Lords have said, the pressures of lockdown and restrictions on children. We have seen an increase in mental health issues among the very youngest, as among those of many other ages. We understand that that is all part of the decision when getting the balance right.
A number of noble Lords spoke about freedom, including my noble friend Lord Hannan and the noble Baronesses, Lady Fox and Lady Hayman. With freedom comes responsibility. I shall be honest and say that I am someone who has been described as a libertarian or a classical liberal, and I quite often use the word “freedom”—but I have to ask a question of my noble friends who think that these measures impinge on their freedom. I believe that we should be allowed to do what we want as long as we do not impinge on the freedom or the rights of others, and do not engage in or advocate violence against individuals, their family or their property—but I fail to see what liberty is impinged on by the requirement to wear a mask. Is it the liberty for me to breathe on other people, and is it really such a bad thing if we impinge on that liberty?
So let us get away from the textbooks and look at it pragmatically. Let us get the balance right. I understand that many noble Lords will see some of the measures as impinging on freedom, but let us put this in context. Many noble Lords have spoken about freedom, but it does not include the right to spread the virus if you have it, and I hope that we all understand that with freedom comes responsibility.
I thank noble Lords for demonstrating the wisdom that exists right across this House and I hope that, despite the many reservations that have rightly been raised, they can support these measures today. I commend the regulations to the House.
Motion agreed.

Health Protection (Coronavirus, Restrictions) (Entry to Venues and Events) (England) Regulations 2021
 - Motion to Approve

Lord Kamall: Moved by Lord Kamall
That the Regulations laid before the House on 13 December be approved.
Relevant documents: Instrument not yet reported by the Joint Committee on Statutory Instruments

Lord Kamall: My Lords, I beg to move.

Amendment to the Motion

Lord Robathan: Moved by Lord Robathan
Leave out after “that” and insert “this House declines to approve the Regulations”.

Lord Robathan: My Lords, it gives me no pleasure, funnily enough, to oppose the Conservative Government whom I support, but I have to say that I am concerned. I am also rather concerned that a lot of people have said that it is wrong or even disgraceful to put down an amendment to something and that we should in some way blindly follow, to use the words of my noble friend Lord Dobbs, the Government and not question them and ask them to justify what they are doing—which is what I am doing.
My noble friend Lord Cormack referred to this being the second Chamber. Surely the second Chamber of Parliament should be doing something useful about asking the Government whether they have got it right. The noble Baroness, Lady Hayman, accused me of being extremist—I think that was the term she used. I do not think it extremist to ask to see the evidence on which government policy is based, and that is really what I am saying.
I do not pretend that this has been easy for the Government; it has been extremely difficult for them. They are under huge pressure, and international pressure as well. I do not doubt either that Covid is an extremely unpleasant disease that is killing people. I believe that I have had it. The ultimate irony would be if, having had three vaccinations, I caught it again over Christmas. I hope that that would bring a wry smile to some of those who have opposed me rather than anything else, but of course it would be an ultimate irony—I could easily do it; apparently, we can catch it a second time.
I of course agree with the Minister about being pragmatic, but I want a proportionate response and I do not think that “Covid passports”, as I call them, are a proportionate response. The noble Lord, Lord Rooker, said we should not divide the House if we are not going to win. Well, I want to register concern, and a lot of people would wish to register concern with this government policy. I am not satisfied with it. So I shall divide the House on what the noble Lord, Lord Scriven, referred to as a “chocolate teapot”. But before I do so, perhaps I may also wish a happy Christmas particularly to my noble friend the Minister and those on the Front Bench, as well as to those opposite, some of whom have not entirely agreed with me today or in the past.

Baroness Thornton: Never.

Lord Robathan: Never? Well, actually I thought the noble Baroness, Lady Thornton, was going to agree about the importance of having the debate—but obviously not. I wish to test the opinion of the House.
Ayes 38, Noes 205.

Amendment to the Motion disagreed.
Motion agreed.

Health Protection (Coronavirus, Wearing of Face Coverings) (England) (Amendment) Regulations 2021
 - Motion to Approve

Lord Kamall: Moved by Lord Kamall
That the Regulations laid before the House on 9 December be approved.
Relevant document: 24th Report from the Secondary Legislation Scrutiny Committee. Instrument not yet reported by the Joint Committee on Statutory Instruments.

Lord Kamall: My Lords, I beg to move.

Amendment to the Motion

Lord Robathan: Tabled by Lord Robathan
Leave out after “that” and insert “this House declines to approve the Regulations”.
Amendment to the Motion not moved.
Motion agreed.
Sitting suspended.

Construction Sector: Roadmap to Zero Retentions
 - Question

Lord Aberdare: To ask Her Majesty’s Government what steps they plan to take to support the implementation of Build UK’s Roadmap to Zero Retentions, seeking to eliminate cash retentions in the construction sector by 2025, further to its endorsement by the Construction Leadership Council on 9 December 2019.

Lord Callanan: My Lords, the Government are working in conjunction with the Construction Leadership Council to support the implementation of the Roadmap to Zero Retentions. Work is being undertaken by the business model workstream of the council. This includes building on the work of the Get It Right Initiative, to drive improvements in quality and reduce the need for retentions through the construction industry and exploring alternatives to cash retentions.

Lord Aberdare: My Lords, the Build UK roadmap and its endorsement by the Construction Leadership Council demonstrate a welcome degree of consensus across the sector that action is urgently needed to eliminate the pernicious practice of retentions, as well as outlining a route to doing so. The Minister’s response indicated a sort of waiting game that retentions might die out of their own accord. There is a general feeling that legislation is needed to bring an end to retentions, so I ask him: what is the plan to reach the 2025 target date, and when will legislation be introduced to achieve it?

Lord Callanan: I understand that the noble Lord has strong feelings on this issue; indeed, we met to discuss this a few months ago and he has previously asked Questions on it, so I know his passion on the subject. The problem is that there is no general feeling that legislation is required. Some people passionately believe in the need for primary legislation, but obviously there is some opposition as well. We continue to believe that the best way forward is for an approach that all sides can agree on to be taken forward by the Construction Leadership Council.

Lord Stunell: I thank the Minister for the way in which he has engaged with noble Lords who have taken an interest in this subject. I recall that he told us of the guidelines that have been issued to departments on taking out construction contracts. I ask him to spend a bit of time in the remainder of this financial year chasing up those government departments that are not yet implementing the guidelines, so that in the coming financial year every contract that is signed by a government department has this retentions clause removed.

Lord Callanan: The noble Lord makes a very good point. The vast majority of government departments no longer use retention clauses. The main exception to that is the Department for Education, and I continue to urge it to follow the lead of other departments in this regard.

Lord Lennie: My Lords, in April, eight months ago, the Government stated:
“The Government, in conjunction with the Construction Leadership Council, is working to identify a sustainable strategy on retentions for the whole construction sector.”
Will the Minister update the House on where the strategy is? There may not be legislation, but is the strategy coming out?

Lord Callanan: There are a lot of different factors to take into consideration. This is a complicated area with widely differing views across the sector. In considering the abolition of this contractual practice, there would need to be the development of alternative surety products for the whole industry. That could mean the adaption of existing products, such as performance bonds, or the introduction of new products. It may also involve a range of different products. It is a complicated area, but we continue to take forward work with the Construction Leadership Council.

Baroness Jones of Moulsecoomb: My Lords, I regret that I was not able to come to the briefing that the Minister gave. It strikes me that this distorts all the figures that come out of the building industry, because even smaller and very trustworthy builders start to pack their quotes in case of retentions. When you look at this as part of the economy, the practice of retentions distorts the whole picture. Getting rid of retentions would allow the numbers to be better and clearer.

Lord Callanan: I agree with the noble Baroness that if we could achieve that, it would be a great result. One of the workstreams that the Construction Leadership Council is taking forward, as I mentioned in my Answer, is based on the Get It Right Initiative, which would see firms with a demonstrable trade record of good performance and quality products not having retentions levied on them. In my view, that is a hopeful development.

Lord West of Spithead: Does this issue have any impact on the shipbuilding industry at all?

Lord Callanan: I am delighted to see that the noble Lord has turned up well dressed to ask such a noble question—he puts the rest of us to shame. My  understanding is that the Ministry of Defence is one of the central government departments that has done much to abolish the use of retentions in its contracts.

Lord Lennie: I will try again: could the Minister say whether he agrees or disagrees that retentions in the construction industry are an appropriate or proportionate mechanism for ensuring quality and fair payment?

Lord Callanan: I can answer that question by saying what we have done in central government in my department: we have substantially abolished them. Most government departments have now got rid of them and only the Department for Education is a laggard. We would be better to do without them, but that is not the same as moving towards a statutory ban.

Baroness Neville-Rolfe: My Lords, as somebody who initiated a review of retentions when on the Front Bench over five years ago, I have one simple question: does the Minister accept that the delay in dealing with retentions in the construction industry is injurious to the industry and hence to the national interest? Will it be possible to now have more rapid action?

Lord Callanan: As I said in response to a previous question, I agree with my noble friend that we need to try to drive some action in this area. But a statutory ban is a very blunt instrument, and it would be difficult without some alternative form of surety being put in place, so we are working with the industry to try to develop those models. My noble friend will know the issue very well from the work that she did.

Lord Aberdare: My Lords, the Minister mentioned the lack of consensus in this area. There is never going to be a complete consensus between one party which is withholding funds and the other party which is having them withheld. This is why action is needed by government to address the issue. I accept that the complete banning of retentions is a major step but that is why action is needed now to devise a path towards that eventual goal.

Lord Callanan: The noble Lord is partly right and there will always be some who will oppose it, but the Build UK Roadmap to Zero Retentions has been developed and is supported by its many clients. The construction firms and trade associations within the membership of Build UK, the Construction Products Association and the Civil Engineering Contractors Association, are supporting this initiative. There are some hopeful signs of consensus going forward.

Alternative Education
 - Question

Lord Storey: To ask Her Majesty’s Government what assessment they have made of the number of young people in alternative education.

Baroness Barran: My Lords, in January 2021 there were 12,800 pupils whose main registration was in a state place funded alternative provision, or AP. A further 9,200 pupils were dual subsidiary registered in state place funded AP, meaning their main registration was at another school. Additionally, local authorities arranged 32,700 placements for children and young people in other independent or non-maintained registered and unregistered settings. Around 59% of these were in independent and non-maintained special schools, many of which are not AP placements.

Lord Storey: My Lords, of the 40,000 or so young people in alternative provision it is widely recognised that once they finish their schooling, many leavers—particularly those with special educational needs—still have anxieties of a large institutional environment. The only funded progression opportunity that exists at entry level would be a further education college. Will the Minister look at supporting these year 11 leavers in alternative provision and pupil referral units who require time to develop and progress towards level 2 with post-16 alternative education funding?

Baroness Barran: I recognise the work the noble Lord has done in this really important area. He is right that the percentage of young people leaving alternative provision who go on to be NEET is far too high. Over the last two years we have provided £15 million of funding for the AP year 11 transition fund, which allows settings to support year 11 students to transition into sustained post-16 destinations. That fund supported over 6,000 pupils, which is about 55% of pupils in year 11.

Lord Soley: My Lords, can the Minister tell us where we are up to on the register? She will remember, I think, that some two years ago the Bill on home education passed through this House with support from all sides. I have had letters from Ministers since then saying that it is going to proceed, but it never actually does. It might be a good idea if they at least told me what is happening; it would be quite nice if they told the rest of the House as well. So, can we have an answer to that question: what is happening to the register?

Baroness Barran: The noble Lord will be aware that we consulted on the register, and he will no doubt be delighted to know that we have responded to that consultation. From the local authority perspective, the consultation showed a clear call for a register, which we support. There was concern expressed by parent groups who educate their children at home. We absolutely understand that many parents go above and beyond to do that, but the safety of children and the fact that we know where they are is all-important.

Lord Bird: Is it possible to accept the fact that a lot of people like myself have had to put their children through alternative education largely because things such as dyslexia are not really accounted for? We have had to follow the Steiner school system, which is about helping people with those problems. That is one of the major reasons why there are so many children going through alternative education.

Baroness Barran: I think the noble Lord uses the term “alternative education” in a slightly broader sense than the noble Lord, Lord Storey, does, but he is absolutely right that it is critical that we support teachers, particularly in mainstream schools, where the majority of children with special educational needs study and learn, to identify as early as possible dyslexia and other similar issues.

Lord Pearson of Rannoch: My Lords, I assume that the Government agree that the number of children in alternative education is less important than its quality. Can the Minister tell us not only how many Muslim children attend our 2,000 madrassas—which are not inspected by Ofsted—but how the Government are satisfied that radical Islam is not being taught in them?

Baroness Barran: I can do my best to get the numbers on the noble Lord’s first question, but we need to be extremely careful not to mix up what is a school, which is regulated by Ofsted, and what settings provide additional education. We are tightening up the definition of a school and will be looking for a legislative opportunity to bring that forward.

Bishop of St Albans: My Lords, returning to home schooling, I have been very struck by the number of people I have met in the last year or two who have decided to take their children out of mainstream schooling to educate them at home—often, from what I hear, with spectacular academic results. But what assessment has been made about the trends of whether this is increasing, and what assessment has been made about the reasons why people are doing this? We need to listen to what is happening at a grass-roots level to understand this phenomenon.

Baroness Barran: The right reverend Prelate asks about the trends. One of the reasons we plan to introduce a register of home-educated children is exactly that: it is very difficult to track those trends today. There has been a lot of anecdotal evidence about the increase in the number of children who are electively home educated during the pandemic, but we do not have hard data on that, and we need to. As the right reverend Prelate knows, there are many reasons why parents choose to take their children out of school. Some children will benefit from being home educated, but we also know—to go back to the Question from the noble Lord, Lord Storey—that there are parents who are concerned that their children will end up in alternative provision and want to avoid that, and therefore choose to educate them at home.

Lord Watson of Invergowrie: My Lords, two and half years have now passed since the Timpson review of school exclusions presented its report, following which the DfE confirmed that it would hold schools accountable for the outcomes of their permanently excluded children—yet a report that the department itself commissioned in May showed that in some multi-academy trusts, schools were refusing to engage with alternative provision. Can the Minister say what instructions have been given to regional schools commissioners to ensure that all schools in multi-academy  trusts meet their responsibilities with regard to alternative education provision, which, of course, looks after the high needs of young people?

Baroness Barran: With regard to the Timpson review, where the noble Lord started, one of the vehicles through which we will deliver on all of the recommendations that we have accepted in the Timpson review will be the SEND review, which, as the noble Lord knows, we plan to deliver in the spring. We have already established behaviour hubs with funding of £10 million. We have included training in the early career framework around behaviour and we are clear in all our guidance that off-rolling students with challenging behaviour is unacceptable.

Lord Addington: My Lords, the link between special educational needs—particularly undiscovered special educational needs—and children being excluded is very well established. When we get this review into SEND, how much work has been done in identifying what is needed in teacher training and professional development to spot at least the most commonly occurring conditions? Will that be a key part of the review and will this be taken into account when looking at what will happen to the high numbers of pupils who are being excluded?

Baroness Barran: The noble Lord is right. About 83% of children in alternative provision have special educational needs and 24% of them are on an education, health and care plan, compared with 4% in the wider population. We will be looking at all the best evidence and research to make sure in the SEND review that we deliver for these children who, for the most part, have had a difficult start in life and we need to support them in the best way we can.

Baroness Blower: My Lords, given that the reason for young people being in alternative provision is that they have been less than successful in mainstream settings and given that academies and free schools do not have to follow the national curriculum, does the Minister think that there is a reason to look at the national curriculum so that more schools, including all our academies, might think it was fit for purpose?

Baroness Barran: I do not think that there is any suggestion that the educational quality in our academies is not fit for purpose. I hope the noble Baroness would agree that it is crucial that when we plan provision in an area, we first consider our most vulnerable children—of whom this is an important group—and make sure that they get the education that they deserve.

International Day of Democracy
 - Question

Baroness Anelay of St Johns: To ask Her Majesty’s Government, further to the speech from the Secretary of State for the Foreign, Commonwealth and Development Office on 8 December at Chatham House on Building the Network of Liberty, what plans they have to support the International Day of Democracy.

Lord Ahmad of Wimbledon: My Lords, democracy and freedom are at the heart of the Foreign Secretary’s vision for a “network of liberty” that would use partnerships, technology, trade and security to promote democratic values. We will be working closely with international partners and civil society, including around the International Day for Democracy in September, to advance the frontiers of freedom.

Baroness Anelay of St Johns: My Lords, last week my right honourable friend the Foreign Secretary said that she was sure she would be able to succeed in setting up the new
“network of liberty that spans the world.”
What progress do the Government believe will have been made in forming that network by the next International Day of Democracy in September 2022, and what progress do the Government expect members of that network to make in preventing further aggression by Russia against Ukraine?

Lord Ahmad of Wimbledon: My Lords, my noble friend, of course, is correct on both points in terms of the detail she asks for. First, on the network of liberty, it is very much what we all stand for: the principles of democracy, freedom and liberty. The UK can show quite direct leadership over the next year through the various events we are hosting; for example, on human rights, ranging from the FoRB conference to the LGBT conference. There is also our leadership on media freedom as we build towards strengthening democracy and key pillars in the build-up to the next democracy summit.
Secondly, on Ukraine, my noble friend will be aware of the recent meeting convened by my right honourable friend of key Ministers on the issue of Ukraine and standing together against Russian aggression. However, as I have said before from the Dispatch Box, right now in Europe, particularly with the concerns around Ukraine and recent concerns in a country that my noble friend knows well—Bosnia-Herzegovina—Russian aggression needs to be curbed and my right honourable friend the Prime Minister said as such in his conversation with President Putin on 13 December.

Lord Alton of Liverpool: My Lords, in advance of this weekend’s sham elections in Hong Kong, will the Minister call for the release of Hong Kong’s legitimate and democratically elected representatives, who are incarcerated in prison? Following what the Foreign Secretary calls China’s “ongoing breach” of the British-Sino declaration, when do the Government intend to raise an objection under the Vienna Convention on the Law of Treaties—and would not that send a much stronger signal about how to safeguard liberty and democracy than allowing states to trash treaties with no consequences whatever?

Lord Ahmad of Wimbledon: My Lords, I agree with the noble Lord, which is why we have consistently called for adherence to the agreements that China has signed. Indeed, the one that it signed when it came to the issue of Hong Kong was an  agreement that has been lodged with the United Nations —and it needs to stand up and fulfil its international obligations. On the issue of calling out for the full release of those who have been detained, I agree with the noble Lord, and we consistently do so publicly and bilaterally with China.

Baroness Hayter of Kentish Town: Not to take away too much from anything that has been said, before we look too much at the mote in other people’s eyes, might we just look at the beam in our own? The attempt to undermine our human rights legislation will not be received well around the world. We have two reports here written by Members of our House with between them 500 years’ service in Parliament, one called Democracy Denied? and the other Government By Diktat. Can we do something about our own democracy before we preach too much to others?

Lord Ahmad of Wimbledon: My Lords, I assure the noble Baroness that, when it comes to the world stage, we have nothing to preach about. I often say that we need to ensure that we make it clear, when we talk to others on a range of the key pillars of democracy, that our own journey was something of a struggle, to get to where we are in 2021. The job is never done. One needs always to reflect on one’s own backyard before we start talking about the importance of democracy elsewhere. That said, I believe that the United Kingdom is and remains a real beacon of democracy around the world, and we continue to share our experiences, lessons and history with others to see how we can strengthen democracy globally.

Lord Oates: My Lords, it is fitting that we should discuss the International Day of Democracy as we remember the legacy of Nelson Mandela, who was laid to rest eight years ago today. Does the Minister agree that we could best honour his memory by supporting democratic Governments in southern Africa and standing with those in the region and across the world who strive for democracy against repressive regimes? Will he urge the Prime Minister to send a clear and unmistakable signal of that solidarity by visiting Zambia at the earliest opportunity to meet its recently elected President and visibly demonstrate our support for the people of Zambia and its democracy?

Lord Ahmad of Wimbledon: My Lords, I totally agree with the noble Lord. It is vital that we stand with democracies, particularly fragile or infant ones around the world, to see how best we can support them. The noble Lord talks about Zambia, and of course we have worked very closely with other key partners in ensuring that democracy not only prevails but is sustained. Indeed, there are notable achievements; most recently, for example, further afield in Africa, in Sudan, the continuing lobbying has resulted in a sense of the restoration of the legitimate Government—but you can never take your eye of the ball, and the noble Lord makes some very valid points.

Lord Howell of Guildford: The network of liberty is an extremely powerful concept, but does it not exist to some extent already? Is not the growing  Commonwealth co-operation on security and defence, which is developing all the time, already part of that network—and is it not an important part of the future story?

Lord Ahmad of Wimbledon: My Lords, I agree with my noble friend. Indeed, my noble friend Lady Anelay and I had a brief discussion on this very question about 24 hours ago. The United Kingdom has been over time a strong beacon in supporting democracy around the world, and the Commonwealth network is a huge example of how we strengthen democracies and human rights.

Lord Foulkes of Cumnock: Does the Minister agree that the Council of Europe is an important agency for promoting democracy? Is it not significant that Belarus is the only country in Europe not a member of the Council of Europe? Following the illegitimate election of President Lukashenko, what are the Government doing to try to ensure the return of democracy in Belarus?

Lord Ahmad of Wimbledon: My Lords, on the noble Lord’s first point—it is not often that I say this to him—I totally agree with him. He knows my views on the Council of Europe. On Belarus, the United Kingdom has worked very strongly and closely with key partners, including the G7, in calling out the flagrant betrayal of democracy and the continued reliance on Russia. It comes back to the point that my noble friend Lady Anelay raised about Russia and Russian support. It is therefore important that we build alliances, strengthen coalitions and co-operation, and send a clear message to Russia that its aggression, particularly in Europe—but also elsewhere around the world—will not be tolerated. In doing so, however, we must build alliances and partnerships.

Lord Hannay of Chiswick: My Lords, will the Minister tell the House whether we were consulted before last week’s summit of democracies about the division between the democratic sheep and the undemocratic goats? Did we endorse the choice made by the United States?

Lord Ahmad of Wimbledon: My Lords, while the United States played the role of the shepherd, I assure the noble Lord that we were very much not just part of the flock, but part and parcel of the decision-making and setting of the agenda of the democracy summit. I myself met with Uzra Zeya, the lead Under-Secretary of State for this summit, and discussed in detail issues of media freedom and illicit finance, which were very much part and parcel of the discussions at the summit.

Lord Collins of Highbury: My Lords, in her speech, the Foreign Secretary said she would be launching the new development strategy in the new year and that this will focus on providing women and girls with the freedom they need to succeed. Malnutrition is the single largest cause of death in women worldwide and is linked to 45% of the deaths of all children aged under five. Can the Minister explain the Government’s  failure to make any financial commitment to this month’s Nutrition for Growth Summit? This is a summit that this country initiated and led on, but it is not now providing leadership on it.

Lord Ahmad of Wimbledon: My Lords, on the noble Lord’s point about the international development strategy, yes, that is being worked on and we are looking to publish it early next year. The points that the noble Lord raised about nutrition will be very much integrated into our strategy. The noble Lord talks about the important leadership we have given on the agenda for the summit on nutrition. I accept that, whereas previously we have been able to give quite specific financial support, on this occasion—due to some challenges that we faced with the reduction in ODA spending—we have not been able to provide support in the manner that we have done previously. However, that does not take away from the fact that nutrition will part and parcel of our integrated strategy on development across the world.

Baroness Hoey: My Lords, the rule of law must apply in a democratic country, along with the freedom of the press. That does not happen in Zimbabwe. Will the Minister and the Government condemn the fact that Covid is being deliberately used in many countries, particularly Zimbabwe, to stop by-elections and the normal democratic process?

Lord Ahmad of Wimbledon: My Lords, I absolutely condemn such actions. The use of the Covid pandemic as an excuse to suppress human rights and democratic rights around the world is all too apparent. That is why we need the kind of alliances that I have just talked about and that my right honourable friend illustrated in her recent speech. Specific to Zimbabwe, as the noble Baroness will be aware, we have also used our new, autonomous sanctions regime to ensure that those who commit egregious abuses of human rights are held to account.

Sugar Beet: Neonicotinoids
 - Question

Baroness Jones of Whitchurch: To ask Her Majesty’s Government whether they are considering an emergency application for the use of neonicotinoids on sugar beet; and if so, what consideration they will give to the advice of (1) the Health and Safety Executive, and (2) the Expert Committee on Pesticides.

Baroness Jones of Whitchurch: My Lords, in asking this Question, I declare an interest through my role in Rothamsted, as in the register.

Lord Benyon: My Lords, I declare my farming interests as set out in the register. An application for the emergency  authorisation of Cruiser SB, which contains a neonicotinoid, has been received and is currently being considered against the strict, legal requirements for emergency authorisation. The Health and Safety Executive’s assessment, the advice of the expert committee on pesticides and the relevant evidence included in the application itself are all carefully considered as part of the decision-making process.

Baroness Jones of Whitchurch: I thank the Minister for that reply but let us be clear what we are talking about: this pesticide is lethal to bees and other insects, and it leaches into the soil, causing long-term damage to wildlife. During our deliberations on the Environment Bill, the Minister, the noble Lord, Lord Goldsmith, pledged to work “harder and faster” to address the “dramatic decline in pollinators”, and confirmed that the scientific advice on the damage caused by neonicotinoids was “correct”. Does the Minister accept that any emergency authorisation would make a mockery of previous ministerial assurances? Does he also accept that the use of these toxic pesticides has no place in our sustainable farming plans for the future?

Lord Benyon: The noble Baroness will be pleased with the progress made that will make these sorts of debates unnecessary in future years. The development of new, resistant strains and the work that has been done, not least at Rothamsted, will mean that we will not have to have this debate in future. We are absolutely committed to protecting wildlife, particularly pollinators—we understand their value—and these decisions are taken in a balanced and careful way.

Baroness McIntosh of Pickering: Will my noble friend assure the House that all other alternative treatments will be deployed on such occasions as this? In particular, can he update the House on where we are with the organic production of sugar beet? I understand that there are alternative treatments, such as breeding aphids that will actually attack the beetle causing the damage to the sugar beet.

Lord Benyon: The concept of integrated pest management is hardwired into our 25-year environment plan and it is one of the standards in the new sustainable farming incentive, which is the first scheme we are announcing as part of environmental land management. So, absolutely, it is vital. There have been applications this year for any derogations for organic farmers.

Lord Cunningham of Felling: Will the Minister make it clear to the House that neonicotinoids are injurious to the health of bees and other pollinators and ought not to be used? What are the Government doing to provide alternatives to these compounds and can he tell us specifically what financial contribution the Government are making to sort this out?

Lord Benyon: Legislation will come forward—next year, I hope—on gene editing, which is a key measure in finding alternatives to this sort of problem. We are talking about a very small percentage of the  area where neonicotinoids were used prior to the 2018 ban, to which the Government are absolutely committed. We are applying very strict conditions—if we go ahead with this; we have not yet made a decision. The last time this derogation was made, those conditions were not met and this spray was not applied. We are a long way from allowing this to go ahead. If it does, it will be under very controlled circumstances.

Baroness Bakewell of Hardington Mandeville: My Lords, the forecast of virus yellows levels in the 2021 sugar beet crop, produced on 1 March, predicted that 8.37% of the national sugar beet area would be affected by the end of August 2021. As the threshold for the use of neonicotinoids is 9%, can the Minister say whether this threshold has actually been breached and, if not, why are the Government considering emergency neonicotinoid use?

Lord Benyon: If we did consider giving this permission, we would then have to apply thresholds. They may be different from the thresholds we applied last year. The noble Baroness is absolutely right: that threshold was not reached and so no seed dressings were applied. I hope very much that that will be the case this year.

Viscount Stansgate: My Lords, the Minister said that the Government have not yet made their decision, and referred to the advice from the Health and Safety Executive and the Expert Committee on Pesticides. I invite, encourage and ask the Minister to consult, as part of his decision-making, a body such as the Royal Society of Biology, the expert professional body in this field, which is full of an enormous amount of expertise—and, moreover, like other scientific bodies of this kind, has a duty under its charter to serve the public interest. Will he consider approaching it for advice?

Lord Benyon: We are open to any advice. There are people from the Royal Society, Rothamsted and many other organisations that provide information, much of which was based on the ban that we introduced in 2018 and any of the conditions that we might make for exemptions this time. The noble Viscount is therefore absolutely right to raise the widest possible type of evidence to be sought.

Motor Vehicles (Driving Licences) (Amendment) (No. 5) Regulations 2021
 - Motion to Approve

Baroness Vere of Norbiton: Moved by Baroness Vere of Norbiton
That the draft Regulations laid before the House on 23 November be approved.
Relevant document: 23rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument). Considered in Grand Committee on 14 December.
Motion agreed.

Civil Jurisdiction and Judgments (2005 Hague Convention and 2007 Hague Convention) (Amendment) Regulations 2022
 - Motion to Approve

Lord Stewart of Dirleton: Moved by Lord Stewart of Dirleton
That the Regulations laid before the House on 16 November be approved.
Considered in Grand Committee on 14 December.
Motion agreed.

Wine (Amendment) Regulations 2021
 - Motion to Approve

Lord Benyon: Moved by Lord Benyon
That the draft Regulations laid before the House on 23 November be approved.
Relevant document: 23rd Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 14 December.
Motion agreed.

Consumer Scotland Act 2020 (Consequential Provisions and Modifications) Order 2022
 - Motions to Approve

Viscount Younger of Leckie: Moved by Viscount Younger of Leckie
That the draft Order and Order laid before the House on 8 and 16 November be approved.
Considered in Grand Committee on 14 December
Motions agreed.

Police, Crime, Sentencing and Courts Bill
 - Report (3rd Day)

Relevant documents: 1st, 2nd, 4th and 6th Reports from the Joint Committee on Human Rights, 6th Report from the Delegated Powers Committee, 7th Report from the Constitution Committee

  
Clause 96: Code of practice

Amendment 66B

Lord Thomas of Cwmgiedd: Moved by Lord Thomas of Cwmgiedd
66B: Clause 96, page 85, line 31, at end insert—“(2A) The code must provide for reviews to be made or other measures taken by the Secretary of State on a regular basis to ensure—(a) compliance with the provisions in the code of practice as to the giving of discretionary and community cautions, and(b) the consistency of application of the code of practice as between different police forces or Crown Prosecution Areas.”Member’s explanatory statementThe purpose of the amendment is to make provision for regular reviews or other measures to ensure compliance with the Code and consistency of practice across England and Wales.

Lord Thomas of Cwmgiedd: My Lords, when the Bill seeks to put the cautions regime on to a statutory basis, it is plainly a very important step forward. Although I welcome it, it is unfortunate that this is being done largely by secondary legislation—an issue obviously addressed in many other contexts, about which I do not wish to speak today.
However, it is clear that even in this skeletal Bill, one critical issue is omitted—addressing the issue of lack of adherence to practice and lack of consistency. I outlined the powerful evidence of this in earlier debates and suggested a solution. That is needed because of the significant evidence that cautions can blight the lives of others and, as cautions are in effect part of the sentencing system, they must reflect transparency and command public confidence.
It was, however, evident from the speech of the Minister in Committee that the need to deal with this is recognised as an issue. He said that
“scrutiny and monitoring of out-of-court disposals is vital to successful implementation, accountability and public perception.—[
The Government did not like the way in which I suggested that this be done in the amendment that was before the Committee, but the Minister has very helpfully discussed the issue. The amendment now before the House very much leaves the means to ensure consistency and adherence to the code to the Secretary of State but reflects the principle of the necessity of scrutiny for consistency and adherence to principle. I look forward to the Minister explaining what Her Majesty’s Government intend to do in relation to consistency and how, in due course, the House can review the details of that.

Lord Paddick: My Lords, I have Amendments 66C and 66D in this group and will speak to Amendment 66B, but I will take them in reverse order if noble Lords will bear with me.
Currently, first-time offenders can be given a fixed penalty notice—an on-the-spot fine—by the police for a range of offences of disorder including dropping litter, being drunk and disorderly, and the possession of cannabis or khat. This Bill removes fixed penalties for disorder, so if the police want to enforce the law  they will have either to arrest those responsible, taking up valuable police resources that should be spent on more serious crimes, or to take no action, leading to an increase in anti-social behaviour. Amendment 66D would retain fixed penalties for disorder.
Currently, first-time offenders can be given a simple caution, where the salutary effect of being found out, arrested and taken to a police station is, in most cases, enough to ensure that they behave themselves in future. It is quick, simple and effective. This Bill removes simple cautions, so if the police want to enforce the law they will have to impose conditions on everyone they caution, including considering whether to impose restrictive conditions, unpaid work conditions, attendance conditions and/or a fine. The police must also consider the views of any victim, including imposing any conditions that the victim or victims suggest. Compliance with conditions must then be monitored and action taken for any breach.
There is no evidence that the existing system of conditional cautions is any more effective than simple cautions, and conditional cautions, of which diversionary and community cautions are a more complex and complicated version, take far more police and other agencies’ time. Can the Minister explain why the Government are getting rid of simple cautions? If the answer is that, given the choice between the bureaucratic nightmare of imposing conditions and a simple caution, the police choose the latter, I have to tell the Minister that, faced with the bureaucratic nightmare of imposing conditions, the police will either release the accused with no further action being taken, allowing the accused to get away with it, or argue that the accused should be charged and sent to court. In fact, I wholeheartedly recommend to the police that, in every case where a diversionary or community caution is being considered, they refer the case to the CPS so that independent prosecutors can advise, not least on the sentence—or, as the Bill calls them, the conditions—the police intend to impose on the accused.
The police want to retain simple cautions. We want to retain simple cautions. Amendment 66C would retain simple cautions. I must say, the Minster has his work cut out to convince me not to divide the House on this issue.
As the noble and learned Lord, Lord Thomas of Cwmgiedd, ably explained, the amendment in his name aims to try to ensure compliance with the code of practice and consistency of application of the code. Academic research into the existing system of conditional cautions is of mainly inappropriate and inconsistent conditions being imposed. I referred to this in detail in Committee. It was not challenged; the House can therefore take it as fact.
The problem with these sorts of problems in the courts has been addressed by sentencing guidelines and the ability to appeal. We need something similar here because the police will, in effect, be deciding whether to enforce the law, whether the accused is guilty of the offence, and the sentence to be imposed, all behind closed doors. The principle of open justice is being undermined by this Government through these changes. Can the Minister confirm whether,  unlike now, records will be kept of the numbers of each type of caution administered, and the types of conditions imposed?
It is quite extraordinary that the police are being given the power to be judge, jury and executioner, when, to date, the Government do not know how many conditional cautions have been administered or what sorts of conditions the police have been imposing. Amendment 66B is the least we can do to exert at least some control over what will be the reverse of open justice.

Lord Ponsonby of Shulbrede: My Lords, speaking first to the amendment tabled by the noble and learned Lord, Lord Thomas, which would make provision for regular reviews of out-of-court disposals, there is a method for this. It is scrutiny panels, which were introduced in previous legislation. They work very unevenly across the country. As a magistrate, I have served on a number of scrutiny panels for the British Transport Police and for a certain area of London, for both adult and youth offences. It is a very interesting exercise because you work with the police, the CPS, probation and some representatives of civil society. We had a rabbi on the scrutiny panel I was on for the British Transport Police, and we reviewed the out-of-court disposals.
The big problem with this approach was that there was no central record of what we were doing with our assessment of the out-of-court disposals. As far as I could find out, neither the Home Office nor the Ministry of Justice collected any of the results of these scrutiny panels. In fact, scrutiny panels do not sit in some areas of the country. Nevertheless, the approach advocated by the noble and learned Lord, Lord Thomas, is a good one. He said that he had held sympathetic discussions with the Ministry of Justice on this matter, so I wish him well with that endeavour.
I too am very sympathetic to Amendments 66C and 66D. As the noble Lord, Lord Paddick, said, simple cautions are quick, simple and, when they work, effective. One of the downsides of being a magistrate is that you see things only when they are ineffective—that is why they have come to court in the first place. Of course, if a simple caution is effective they would not come to court, but the noble Lord makes a very strong point about having something that is quick and simple for the police to administer and which is, for a first-time offender, a salutary experience: they have admitted their guilt, they have got the caution and they are on their way relatively quickly.
It is a similar point for the on-the-spot penalties for littering and other minor offences. A quick on-the-spot penalty will have a salutary effect for someone who is largely law abiding. It seems a pity to lose that from the armoury of the police. If the noble Lord moves his amendment, we will support it.

Earl Attlee: My Lords, the noble Lord, Lord Paddick, makes a very good case for his amendments. I hope that my noble friend the Minister can satisfy the House, but I think that he will struggle a bit.

Lord Wolfson of Tredegar: My Lords, that is a very encouraging note on which to rise.  I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Paddick, for bringing back matters that we discussed in Committee.
I say respectfully that Amendment 66B, tabled by the noble and learned Lord, Lord Thomas, commendably deals with the need for consistency in both the use of, and compliance with, the code of practice that will guide the use of diversionary and community cautions under Part 6 of the Bill. I am grateful to the noble and learned Lord for making time to discuss this matter with me.
For the record—it may have been in the mêlée that occurred when people were leaving—I thought I heard the noble and learned Lord refer to cautions as part of the sentencing framework. Without wishing to split hairs, we see this as separate from the sentencing framework and as an out-of-court disposal, but if the noble and learned Lord did say that, I understood that he was talking in broad terms. I am keen to reassure him and, indeed, the House that a fundamental aim of reforming the out-of-court disposal options currently in use was to improve consistency by reducing the number of disposals and creating two clear and statutory options.
Some attention was paid in Committee to the lack of data currently recorded and available on the use of cautions, whether conditional or simple, and the types of conditions attached to the former. We are keen to address that and believe that the proposals in Part 6 of the Bill, along with the code of practice that will accompany it, will do so. We are currently engaging with the Home Office regarding the outcomes framework so that police can accurately report the number of cautions given, and we will also explore the practicalities of gathering qualitative data from police on the types of conditions used.
We want to preserve the balance between a national framework for decision-making on the one hand and, on the other, operational decision-making that rests on the facts of the case and can be independently and locally scrutinised. We believe that working to develop more effective and consistent scrutiny panels in forces, thereby ensuring independent representation and transparency of findings, would be the most effective course of action. For that reason, we are currently engaging with stakeholders on precisely this issue, including a range of questions on transparency and scrutiny regarding the use and monitoring of the new cautions. It will only be possible to find the balance we seek once we have that feedback. I can assure the noble and learned Lord and the House that this will subsequently be included in the code of practice accompanying this legislation, which will itself be brought before Parliament for scrutiny in due course.
Amendments 66C and 66D, tabled by the noble Lord, Lord Paddick, relate to the essence of the reform that the Bill makes to the out-of-court disposals framework. As I noted in Committee, this reform has its roots in the work led by the National Police Chiefs’ Council, whose strategy in 2017 removed the need for the simple caution, penalty notice for disorder, and cannabis and khat warnings. The Government have listened to the NPCC and are now taking steps to ensure national consistency in the framework that it  has helped to develop. The current position is that one-third of police forces have already moved to using only conditional cautions and community resolutions, and many more, including the Metropolitan Police, are currently in the process of moving over to this two-tier framework.
With Amendment 66D, the noble Lord seeks to retain penalty notices for disorder. We have already seen a marked decline in their use by police. The most recent CJS statistics show that the use of penalty notices for disorder has fallen 28% from the previous year. These are distinct from the fixed penalty notices, which are unaffected by Part 6 of the Bill.
I should also make reference to an important matter that was raised by the right reverend Prelate the Bishop of Gloucester in Committee, speaking through—if I can put it in these terms—the right reverend Prelate the Bishop of Durham. This was in regard to the intention behind the use of conditional cautions. The point she made was that they should have the aim of rehabilitation or restoration. The purpose of this is both to address the causes of the offending in order to support the offender to desist from reoffending and to put a welcome emphasis on the wishes of the victim, allowing for appropriate restoration to be made, where appropriate. The fact is that simple cautions and penalty notices do not allow for this victim-centred approach that mandates rehabilitative and restorative actions. I therefore do disagree with the noble Lord, Lord Paddick, that this gives rise to what he called—if I heard him correctly—a bureaucratic nightmare.
Retaining the use of penalty notices and simple cautions would undermine these aims entirely and indeed the reform itself. They are inconsistent with it. I heard the noble Lord say, somewhat in stereo as it was repeated behind me by the noble Earl, Lord Attlee, that I have my work cut out to persuade him not to divide the House. But I hope I have set out the principles that underly the new approach: the conditions support rehabilitation and encourage the offender to desist from reoffending. You simply do not get that with a simple caution or notice. I therefore hope that, having listened to what I have said, both he and the noble and learned Lord, Lord Thomas, will not press their amendments.

Lord Paddick: Before the noble Lord sits down, could he just confirm that these changes—not allowing fixed penalties or simple cautions—are being made on the basis of no evidence whatever of the efficacy of conditional cautions versus simple cautions? He has just admitted from the Dispatch Box that the Government do not retain any data on the number of conditional cautions versus the number of simple cautions, or about the sorts of conditions imposed, but retain data only on the total number of cautions.

Lord Wolfson of Tredegar: My Lords, I think we might now be in double figures for the times I have been asked that question. I have set out in my remarks, fairly I hope, what lies behind it. The work from the National Police Chiefs’ Council lies behind this; a third of police forces have gone there; and many more are considering it. Whether one calls that evidence or not, that is the basis on which these reforms are  predicated. I have answered this question before, and I answered it in Committee. I appreciate my answers may not satisfy the noble Lord, but that is the basis on which we think this is a good idea; and quite a number of police forces already think this is a good idea.

Lord Thomas of Cwmgiedd: My Lords, I thank all who participated in this debate. I will deal very briefly with the two points that have arisen.
First, the system to ensure consistency and compliance with the code will apply to whatever system is brought into effect, including the conditional cautions or fixed penalty notices. I am very grateful to the Minister for his statement, and it seems to me there is now a proper basis for going forward. I think it is fair to say that, when fixed penalty notices and cautions came to be used much more frequently, attempts were made by the judiciary from about 2005 onwards—therefore spanning both Governments—to try and put in place such a system. I am afraid we did not get very far, but it is encouraging to know the Minister is now behind this.
I hope for two things. One is for us to go forwards, as the noble Lord, Lord Ponsonby of Shulbrede, has said, with the magistrates doing matters locally, and I hope the MA will positively engage. The other is for a national basis. National consistency is important, because to the man on the Clapham omnibus—or whatever the modern phrase is—whether you get required to do something by the court or by the police, it is still part of the same system and it is still the law that requires it. Therefore, I look forward very much to scrutinising, when this comes back, the proposals put forward by the Government in the code.
As to the second part, I am again grateful to all who have taken part. If I may respectfully say so, I think there is a certain lack of wisdom in getting rid, without an adequate evidence base, of something that has been as useful in the past as a simple caution. However, I beg leave to withdraw the first amendment.
Amendment 66B withdrawn.

  
Clause 98: Abolition of other cautions and out-of-court disposals

Amendment 66C

Lord Paddick: Moved by Lord Paddick
66C: Clause 98, page 86, line 26, at beginning insert “Except for a simple caution,”Member’s explanatory statementThis amendment would retain the use of the simple caution.

Lord Paddick: I wish to test the opinion of the House.
Ayes 154, Noes 165.

Amendment 66C disagreed.
Amendment 66D not moved.

  
Clause 100: Regulations under Part 6

Amendments 67 and 68

Lord Wolfson of Tredegar: Moved by Lord Wolfson of Tredegar
67: Clause 100, page 87, line 11, leave out from “90(8)” to end of line 12Member’s explanatory statementThis amendment provides for regulations under Clauses 81(8) and 90(8) to be subject to the affirmative procedure whether they increase or decrease the maximum number of hours a person may be required to work or attend at a place pursuant to a caution.
68: Clause 100, page 87, line 15, after “increase” insert “or decrease”Member’s explanatory statementThis amendment provides for regulations under Clauses 82(3) and 91(3) to be subject to the affirmative procedure if they increase or decrease the maximum amount of a financial penalty pursuant to a caution by more than is necessary to reflect changes in the value of money.
Amendments 67 and 68 agreed.

Amendment 69

Lord Wolfson of Tredegar: Moved by Lord Wolfson of Tredegar
69: Before Clause 102, insert the following new Clause—“Penalty for cruelty to children(1) In section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16), in subsection (1)(a) (penalty on conviction on indictment), for “ten” substitute “14”.(2) Subsection (1) applies only in relation to offences committed on or after the day on which this section comes into force.”Member’s explanatory statementThis amendment increases the penalty under section 1(1)(a) of the Children and Young Persons Act 1933 to 14 years.

Lord Wolfson of Tredegar: My Lords, these amendments follow a discussion in Committee and an undertaking given on Report in the other place in response to amendments tabled by Tom Tugendhat MP, with cross party-support, which sought to raise the maximum penalties for child cruelty offences. We said at that time that we would bring forward proposals for reform as soon as possible.
I pay tribute to Tom Tugendhat and the family of his young constituent, Tony Hudgell, who have campaigned tirelessly for these changes to the law in his name. As a baby, Tony was abused to such an extent by his birth parents that he is now severely disabled. No child should suffer such appalling abuse, especially from those who should love and care for them most. Therefore, it is right to ensure that, in such cases, the punishment fits the crime. I should add that today saw the sentencing of those involved in the tragic death of Star Hobson. I offer my and the Government’s sincere condolences to Star’s friends and family. The violent death of a child as young as Star really is heart-breaking.
Government Amendments 69 and 70 amend Section 1 of the Children and Young Persons Act 1933 and Section 5 of the Domestic Violence, Crime and Victims Act 2004 respectively to increase the maximum penalties in three circumstances. Those for cruelty to a person under 16 rise from 10 years’ imprisonment to 14 years’ imprisonment; those for causing or allowing the death of a child or vulnerable adult rise from 14 years’ imprisonment to life imprisonment; and, finally, those for causing or allowing a child or vulnerable adult to suffer serious physical harm rise from 10 years’ imprisonment to 14 years’ imprisonment.
Government Amendment 70 also adds the offence of causing or allowing the death of a child or vulnerable adult to Schedule 19 to the Sentencing Act 2020. This is a consequential amendment of Schedule 19 which lists offences where the penalty may be life imprisonment. It means that, if the judge determines that the offender is dangerous and the circumstances of the offence are sufficiently serious, the offender must receive a life sentence. Furthermore, a consequence of increasing the maximum penalty for causing or allowing the death of a child or vulnerable adult to life imprisonment is that offenders sentenced to seven years or more for that offence will now spend two-thirds, rather than half, of the sentence in custody.
I am confident that the House will agree, especially in light of the recent appalling cases, that the courts should, where necessary, have the fullest range of sentencing powers available—I underline that these are new maximum sentences—to deal appropriately with those who abuse children and vulnerable persons. I therefore beg to move Amendment 69.

Baroness Jones of Moulsecoomb: My Lords, it is a pleasure to rise to support government amendments. There are cases of child abuse and neglect that cannot be adequately punished under the current maximum sentences. It is rare for me to urge more punishment; I always try to focus on rehabilitation, deterrence and restitution, but here I see more punishment as appropriate, simply because protecting a child is our natural human response.
A few years ago, a grave was found in Italy containing a 10,000 year-old skeleton of a tiny baby girl, just a few weeks old. She was buried with what would have been quite precious things: an eagle owl talon, shell pendants and some precious stones. This showed us that, first, 10,000 years ago people cared about their children even when they were of a very young age, and we did not necessarily know that—burials from the Mesolithic period are quite rare—and, secondly, the  fact that she was a girl showed that it was an egalitarian society and they did not have our western attitude of women being rather less than men.
There is, however, no deterrent effect required from criminal law because if the only thing stopping someone hurting a child is that it is illegal then there is something deeply wrong with that person. We have an innate reaction to child abusers—a natural hatred towards anyone who would do something so vile. However, that is not to say that every single case of child abuse or neglect is the same, so I am pleased that this is an increase in the maximum sentences and that the Government are not messing around with mandatory minimum sentences.

Lord Marks of Henley-on-Thames: My Lords, we also support these amendments. There has been a ghastly spate of tragic cases of cruelty to children, both those mentioned by the Minister and others. We agree that increasing the maximum sentence from 10 years to 14 in cases of serious harm, and from 14 years to life in the case of death, is both acceptable and to be supported.
Along with the noble Baroness, Lady Jones, we note that the proposals in the government amendments, as the noble Lord, Lord Wolfson, has fairly pointed out, are for an increase in the maximum sentences, and there is no proposal for a mandatory minimum sentence. Nor is there any proposal for a judge to find exceptional circumstances before departing from a minimum, as was the case with the “Harper’s law” amendment to the Bill, made by the Government earlier in these proceedings, and as there is in the proposals to be discussed in the next group.
We agree with the Government that the offences targeted by these amendments are of the most grievous kind. We fully understand that the severity of the proposed penalties is warranted, and we therefore support the amendments.

Baroness Chapman of Darlington: My Lords, we support the amendments. I read with interest the debate on Report in the Commons, where there was clear support for them across the House. The concern to protect children and vulnerable adults is felt particularly keenly at this point. We have all been deeply shocked and moved by the recent cases, and by the voice of Arthur Labinjo-Hughes—I cannot bear to repeat his words. It is little wonder that the Government feel moved to act on this issue. Our justice system should reflect the public’s disgust and concern at what has happened.
However, I want to say something about the impact of these amendments. As hinted at by the noble Baroness, Lady Jones, increasing sentences will not prevent these crimes. These measures are the right thing to do and we support them, but they will not prevent these crimes. The Government have systematically undermined early intervention and prevention services, which have largely been delivered by local government, along with health in schools, which have combined to protect children and vulnerable adults. I ask the Minister to speak to his colleagues about working urgently and strategically to deal with the now well-understood and  reported problems of poor communication, lack of curiosity, excessive case loads and inadequate co-ordination of services that put child services under so much strain and children at risk. Addressing those issues would do far more to safeguard children and vulnerable adults. For today, though, we support these changes, insufficient though they are.

Lord Wolfson of Tredegar: My Lords, I am grateful to all those who have contributed to this debate. I will pick up the point just made by the noble Baroness, Lady Chapman of Darlington. There has indeed been cross-party support on this point in your Lordships’ House, as there was in the other place, and I am grateful to her and the noble Lord, Lord Marks of Henley-on-Thames, for that. I therefore will not shatter the mood of consensus by descending into a debate on early intervention, save to say that I too agree that early intervention is important. I will pass her remarks on to my colleagues and I am sure we will continue that debate at another time.
For today, it is important to preserve that consensus. There is a mood across the House that these amendments are important, for the reasons given by all speakers. I was particularly grateful to have the support—perhaps unusually, if I may say so—of the noble Baroness, Lady Jones of Moulsecoomb, which shows that this issue is a cross-party, and perhaps even a non-party, issue. With those thanks, I commend the amendments to the House.
Amendment 69 agreed.

Amendment 70

Lord Wolfson of Tredegar: Moved by Lord Wolfson of Tredegar
70: Before Clause 102, insert the following new Clause—“Penalty for causing or allowing a child or vulnerable adult to die or suffer serious physical harm(1) Section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing a child or vulnerable adult to die or suffer serious harm) is amended in accordance with subsections (2) and (3).(2) In subsection (7) (penalty in the case of a person’s death), for the words “liable on conviction on indictment” substitute “liable—(a) on conviction on indictment in England and Wales, to imprisonment for life or to a fine, or to both;(b) on conviction on indictment in Northern Ireland,”.(3) In subsection (8) (penalty in the case of serious physical harm), for the words “liable on conviction on indictment” substitute “liable—(a) on conviction on indictment in England and Wales, to imprisonment for a term not exceeding 14 years or to a fine, or to both;(b) on conviction on indictment in Northern Ireland,”.(4) Subsections (2) and (3) apply only in relation to offences where the unlawful act to which the offence relates is an act that occurs, or so much of such an act as occurs, on or after the day on which this section comes into force.(5) In Schedule 19 to the Sentencing Code (list of certain specified offences carrying maximum sentence on indictment of imprisonment for life), after paragraph 20 insert—“Domestic Violence, Crime and Victims Act 200420A(1) An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 that meets the conditions in sub-paragraph (2).  (2) The conditions are that—(a) the unlawful act to which the offence relates was an act that occurred, or so much of an act as occurred, on or after the day on which section (Penalty for causing or allowing a child or vulnerable adult to die or suffer serious physical harm) of the Police, Crime, Sentencing and Courts Act 2021 came into force, and(b) the offender is liable on conviction on indictment to imprisonment for life.””Member’s explanatory statementThis amendment increases, for England and Wales, the penalties under section 5(7) and (8) of the Domestic Violence, Crime and Victims Act 2004 to life (if a person dies) or 14 years (if a person suffers serious physical harm). The amendment includes a consequential amendment of Schedule 19 to the Sentencing Code, which lists offences where the penalty may be imprisonment for life.
Amendment 70 agreed.

  
Clause 102: Minimum sentences for particular offences

Amendment 71

Lord Marks of Henley-on-Thames: Moved by Lord Marks of Henley-on-Thames
71: Clause 102, page 88, line 20, leave out “there are exceptional” and insert “such a sentence would be contrary to the interests of justice having regard to”Member’s explanatory statementThis amendment, along with Lord Marks’ amendment to page 88, line 23, would remove the requirement for the circumstances to be exceptional before a judge was empowered to decline to impose the minimum sentence (for offences of threatening with weapon or bladed article) and would entitle the judge to do so where in the circumstances the judge concluded that such a sentence would be contrary to the interests of justice.

Lord Marks of Henley-on-Thames: My Lords, of the amendments in this group, Amendments 71 to 78, to which I speak now, replicate the amendments I spoke to in Committee, which were also in my name and the name of the noble Lord, Lord Pannick, whom I thank for adding his support to them. Noble Lords will remember that in Committee we had significant and powerful support across the Chamber, including from noble and learned Lords and two former Lord Chief Justices, among them the noble and learned Lords, Lord Thomas and Lord Judge.
These amendments raise an important point of principle concerning judicial discretion. The proposed provisions in Clause 102 impose mandatory minimum sentences and permit judges to depart from those mandatory minima only in “exceptional circumstances”. That amounts to a serious attack on judicial discretion in sentencing and is likely in many cases to give rise to significant injustice. That is true for all four of the minimum sentences proposed: six months in custody for adults threatening with a weapon or bladed article, and four months for 16 and 17 year-olds; seven years for a third class A drug trafficking offence; three years for a third domestic burglary; and six months, or four months for 16 and 17 year-olds, for a repeat offence of carrying an offensive weapon or possessing a bladed or pointed article in a public place or on educational premises.
I am grateful to the Minister for considering our arguments on this topic and for meeting me to discuss them. However, my understanding is that he is likely to maintain the position he took in Committee. He is likely to argue that the judge’s power to depart from the minimum sentences if they find they are exceptional circumstances allows a judge some latitude. Yet he maintains the position that “exceptional circumstances” is a phrase well known to the law as a threshold and should not be changed.
The reality is that the phrase “exceptional circumstances” allows a judge very limited latitude indeed. It is true that the noble Lord, Lord Ponsonby, with his long experience as a magistrate, has said that magistrates’ courts are in the habit of treating the requirement for “exceptional circumstances” with a degree of flexibility. Perhaps that is true of exceptional hardship in relation to disqualifying people for acquiring 12 points on their driving licences. However, the reality is that, properly applied and precisely because this is a threshold phrase well known to the law, as the Minister says, the requirement for exceptional circumstances is far more rigid and far stricter than that experience of magistrates’ courts would imply. Courts have regularly held the phrase to mean that the circumstances must be completely out of the ordinary for exceptional circumstances to be found. Indeed, it is patently obvious that that is the reasoning behind the proposed provisions in Clause 102. The Government are concerned to ensure that more severe custodial sentences are imposed in the cases to which these minima would apply.
Our amendments, on the other hand, would allow for judicial discretion to depart from the minimum sentences where the judge decides that it would be contrary to the interests of justice to impose such a minimum sentence, having regard to circumstances relating to the offence or the offender. Under our amendments, the prescribed minimum sentences would remain the default position—the default sentences—but judges would have the power to depart from them if they thought that the minimum sentences would be unjust. We believe that if only the Government could trust the judges to apply the law and to do what the interests of justice require in particular cases, they would simply accept these amendments.
The Minister has argued, and I suspect will argue again, that Parliament has the power to legislate for more severe sentences and that judges are obliged to sentence in accordance with the legislation that Parliament passes. That, of course, is a truism. However, I expect he will go further. If and in so far as he goes further and argues that if Parliament passes legislation requiring a particular sentence for a particular offence that is somehow by definition a just sentence, there we part company. Legislatures here and across the world can and do pass unjust laws. In many cases these minimum sentences would not offend against a judge’s sense of justice, but there will be many cases where they do so offend. If they are offensive to judges and to reasonable people’s sense of justice, I suggest that they are probably unjust, whether or not they are sanctioned by statute.
Take the case of an inadequate young man, whether before or after he turns 18, who gives into peer pressure to carry a knife and repeats the offence, or who does so out of genuine fear of gang members, combined with a misplaced belief that carrying a knife might protect him. Or take the case of a drug addict, hopelessly incapable of either giving up drugs or funding his habit, who commits burglary repeatedly and then comes before the court for a third or fourth time at a time when there is at last some hope of his rehabilitation and treatment. Such circumstances in the world of criminal justice are commonplace, but to find them “exceptional” judges would be put in the position of having to act in breach of their judicial oath. That does not mean that the sentences would not be unjust.
To put judges in that position is as wrong as it is invidious. It would weaken the confidence and pride of judges in their position and their work, and the confidence of the public in the judicial system. It might also adversely impact on the ability of prosecutors to obtain convictions. Permitting judges to depart from these minimum sentences where it would be just to do so would also promote rehabilitation and reform where that is, or might be, achievable. Mandatory minimum sentences would do none of that.
I also support Amendment 82A, tabled by the noble Lord, Lord Ponsonby, and my noble friend Lord German, which would introduce restrictions on sentences of six months or less. We on these Benches would go further and introduce a positive presumption against such short sentences, which, on all the evidence, do nothing to reduce reoffending—rather, they do the contrary—or to cut crime. I will leave it to the two noble Lords to set out the case for this amendment more fully. I beg to move.

Viscount Hailsham: My Lords, I support the observations made by the noble Lord, Lord Marks. On previous occasions, and indeed in Committee, I expressed my real anxiety about mandatory minimum sentences, particularly in the context of this group of amendments. I share the noble Lord’s view that a mandatory minimum sentence of this kind is capable of doing very considerable injustice.
I appreciate my noble friend the Minister’s view about exceptional circumstances, which he has explained before. I recognise that there is an ability on the part of the judge in exceptional circumstances to disapply the minimum sentence, but I share the noble Lord’s view that the concept of “exceptional circumstances” means something way out of the ordinary—exceptional. That means that the proviso, in my view, will be seldom applied.
The amendment moved by the noble Lord goes much further than that and, in my interpretation of it, imports the concept of fairness and justice. I agree with him. Because that is my interpretation of the amendment —namely, that we are introducing the concept of fairness and justice as a means of disapplying the minimum mandatory sentence—I shall support the amendment if the noble Lord seeks the opinion of this House.

Lord Pannick: My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Marks, and I agree with everything that he said  and, indeed, what has been said by the noble Viscount, Lord Hailsham. There is no doubt that there is a real difference, both in principle and in practice, between exceptional circumstances and what is required in the interests of justice. It seems to me that, whether or not the circumstances are exceptional, it is essential that the court has a power not to impose a sentence that the judge believes to be contrary in the circumstances of the particular case to the interests of justice.
I am surprised and disappointed to hear from the noble Lord, Lord Marks, that a Minister of Justice, particularly one as wise and fair as the noble Lord, Lord Wolfson, should resist an amendment that confers power on the courts to avoid imposing a sentence that the judge believes would be contrary to the interests of justice. How can that possibly be right? If we are to have more minimum sentences—and I share the concerns as to whether we should—it is absolutely essential that the judge has a discretion to impose a sentence that he or she thinks is in the interests of justice.

Lord Garnier: My Lords, I entirely agree with the noble Lords, Lord Marks and Lord Pannick, and my noble friend Lord Hailsham.

Lord Faulks: I have had the opportunity on a number of occasions, sitting as a recorder, to pass sentence in cases where, in one case after another, advocates have suggested that I take an exceptional course—and sometimes I have been persuaded to take an exceptional course. It seems to me that the word “exceptional” provides an opportunity for a judge in the interests of justice to depart from the minimum sentence. But this is a decision taken by the Government in response to a particular set of offences, and the general public would perhaps agree with that policy; it requires judges to think long and hard before deciding that there are exceptional circumstances. I note that the noble Lord, Lord Marks, suggested that there may be many cases where they consider it in the interests of justice not to pass a minimum sentence. It seems to me that that is a question of policy that the Government have identified and, although naturally I favour as much judicial discretion as possible, it seems to me a policy decision that they are entitled to take.

Baroness Jones of Moulsecoomb: I do not want to re-enter an old argument but, in Committee, I was almost embarrassed when the Minister pointed out that I was completely wrong about mandatory minimum sentences. Not being a lawyer, I thought that I had made some sort of legal error, but apparently not. Clause 102 will lead to gross injustice for anyone who is convicted of these offences, except in exceptional circumstances. That is revealed by the very clever wording of the amendments tabled by the noble Lord, Lord Marks of Henley-on-Thames, which contrasts those exceptional circumstances with a much preferable
“contrary to the interests of justice”.
These amendments bring justice into play rather than pure, unmetered punishment. I and my noble friend will be supporting the amendments.
The deterrent effect of these minimum sentences would still be in play, but there would also be the freedom that, when justice requires, a person is not given  one of these mandatory sentences—so the Government can still hold their “tough on crime” stance and even call this “crime fortnight” while justice is still served—although it would be good if they could admit their own crimes sometimes.

Lord Hope of Craighead: My Lords, I will say a few words in support of Amendment 82A dealing with short custodial sentences. The value of this amendment is that it places greater emphasis on alternative disposals, which fits in with what I thought was the Government’s policy of trying to rehabilitate offenders. Sending people to prison for a short period is counter- productive. One knows what happens in prisons. To send people for a short sentence is wasteful of public money. If there is an alternative to a custodial sentence, then it should be adopted. The proposal made in this amendment has a great deal behind it.
As for the other issues, speaking as a former judge I tend to support what the noble Lord, Lord Faulks, has said. If I was faced with the choice of words, I would find it easier to work with the Government’s wording than the wording proposed in the amendments.

Bishop of Gloucester: My Lords, I agree with much of what has been said. On Amendment 82A I reiterate what has been said, and I hope will be said later, about primary carers. We know the damage short sentences do to families. We also know that close to half of those leaving custody go on to reoffend within a year of their release, but two-thirds of those sentenced to less than 12 months go on to reoffend.
This is not pie in the sky; if we look at Germany, which performs better on virtually every metric including reoffending, they imprison a far smaller proportion of the population and sentencers have to make two assessments before sentencing. First, they have to show that a community sentence is inappropriate and, secondly, they have to say that a short sentence will suit the need better. I commend Amendment 82A.

Lord German: My Lords, I have added my name to Amendment 82A. I apologise to the House for being a few moments late into the Chamber; my little legs would not carry me fast enough from committee to Chamber.
Amendment 82A amplifies the debate we had on short sentences in Committee. It does not seek to ban short sentences but sets out to reduce the use of custody for less serious offences for which there are better options within the community. The argument made in Committee, that there are already guidelines and the Sentencing Code to guard against the overuse of short sentences, is disproven by the way in which the matter does not arise in sentencing at the moment.
The current arrangements—the ones the Minister spoke of in Committee—appear to be robust in theory because imprisonment is already reserved for serious offences and custody is already described as a last resort. As principles, these sound restrictive but have not proven to be so in practice. The current arrangements regarding the custody threshold are an unsatisfactory test because they can be interpreted as permissive when an offender has experienced all other possible  forms of sentence even though their latest offence is not that serious. The problem with this is that it magnifies the roundabout, which is short sentences without any opportunity for rehabilitation, being outside for a very short period, reoffending and coming back through the system yet again.
This Bill creates a strange ladder of offences because, if you add in the additional features of the community sentences, which is detention in people’s homes, then that increases the features of the system in this first part of the ladder. The ladder then has a rung which has a much shorter stage to the position of imprisonment. We could say that the position after this Bill will be that the first part of the community sentences has much more amplification of the measures that can be used to deal with the sorts of crimes we have been talking about.
The amendment is designed to build a consensus around the use of custody, aligning the evidence of better outcomes with a choice of sentence. It also aligns with the Government’s position. In the 2020 White Paper from the Ministry of Justice, A Smarter Approach to Sentencing, the Government said:
“While short custodial sentences may punish those who receive them, they often fail to rehabilitate the offender or stop reoffending. Evidence suggests that community sentences, in certain circumstances, are more effective in reducing reoffending than short custodial sentences.”
This is the Government’s position, as outlined in 2020. This amendment makes reforms based on the length of sentence, by clarifying the principles for opposing imprisonment. For this reason, I commend it to the Minister. It would help reduce reoffending. It would help people rehabilitate. It would remove the great problem, as expressed by the Government, that short sentences punish those who receive them but fail to rehabilitate the offender or to stop reoffending.

Lord Bradley: My Lords, I will speak very briefly to this group of amendments. In particular, I support Amendment 82A in the names of my noble friend Lord Ponsonby and the noble Lord, Lord German. I declare my interest as a trustee and vice-chair of the Prison Reform Trust.
In Committee, I tried to make the arguments, both social and economic, against the use of short custodial sentences and in favour of robust community sentences, where appropriate. I will not repeat those arguments this afternoon. Suffice it to say that, in 2020, over 40,000 people were sent to prison, the majority of whom had committed a non-violent offence. Almost half were sentenced to serve six months or fewer.
As many voluntary and charitable organisations have pointed out, and as we have just heard, short prison sentences have proven less effective than community sentences at reducing reoffending. Short-term prison sentences have a particularly harmful effect on women, who often have primary care responsibilities. We will debate that later today. In 2020, the National Audit Office estimated that the annual cost per prison place was £44,640, whereas for a community sentence it was, on average, £4,305.
I support the views expressed by the noble Lord, Lord German. I have two quick examples which show  why Amendment 82A is totally in line with the Government’s own recent policy statements. First, the Ministry of Justice’s Female Offender Strategy clearly states:
“We will support a greater proportion of women to serve their sentence in the community successfully and reduce the numbers serving short custodial sentences by … Ensuring that courts have better and more comprehensive information about female offenders to inform sentencing decisions”.
The Government support community sentences. As a committed member of the Minister’s Advisory Board on Female Offenders, I fully endorse this strategy. I believe it is totally consistent with Amendment 82A.
Secondly, there is the Government’s recently published From Harm to Hope: A 10-Year Drugs Plan to Cut Crime and Save Lives. They have committed £780 million to this programme, £120 million of which will be used to increase the number of offenders and ex-offenders engaged in the treatment they need to turn their lives around. The plan goes on to say that this enhanced spending on drug treatment and recovery will also drive down crime by cutting levels of drug-related offending.
I agree, and I believe these programmes will be successful if they are clearly linked to community sentences, not short-term prison sentences. Such community sentences, with treatment requirements—whether for drugs, alcohol, mental health conditions or a combination of all those requirements—properly funded and overseen by the reconstituted National Probation Service, will give the judiciary the confidence to administer them, as opposed to the expensive and futile experience of a short prison sentence.
I therefore believe that recent government policy announcements are totally in line with our proposals in Amendment 82A, and I feel sure that the Minister will give a very positive response to the proposal.

Earl Attlee: My Lords, I have no objection to short prison sentences per se. The problem I have is that our current prison system is so hopelessly ineffective at rehabilitation. That is why in Committee I tabled my Amendment 241, a proposal for drastic reform. I am grateful for the response I got from the Committee, and indeed from my noble friend the Minister, and that is why I saw no need to table it on Report.

Lord Ponsonby of Shulbrede: My Lords, I will speak first to Amendment 82A, to which I put my name, together with the noble Lord, Lord German. It specifies that short periods in custody should not be an inevitable response to someone with a history of relatively minor offending and that sentencers should be required to state the reasons for giving a prison sentence up to and including six months.
A coalition of views has been expressed in support of the amendment. We have, if she does not mind being described in this way, a campaigning right reverend Prelate who consistently talks about short prison sentences, particularly as they affect women, and my noble friend Lord Bradley with his expertise in this area regarding harmful effects on women in particular but also people with mental health problems. I also include myself in the coalition, because I regularly sentence short sentences.
The point I have made in these debates before is that, while the reoffending rate is indeed as bad as the right reverend Prelate said—there are high reoffending rates—in my experience as a sentencer, I sentence short sentences only when a community sentence has failed. I literally cannot remember a time when I have sentenced a short custodial sentence where there have not been—sometimes multiple—failures of community sentences. When I sentence, I am comparing a 100% failure rate for the community sentences of the people in front of me with the 60% failure rate of those who come out of short custodial sentences and reoffend within a year, so I am making a very unfortunate calculation when I give short custodial sentences.
Nevertheless, the noble Lord, Lord German, made absolutely the right point. We are trying to help the Government realise their own policy. The Government acknowledge what I have just said regarding the inevitability, sometimes, of short custodial sentences. The real answer is to come up with a robust, community-based approach that works and that sentencers have some level of belief in. I look forward to the Minister’s response to Amendment 82A.
I turn to the other amendments in the group. As I said in Committee, the Labour Party will abstain—with reluctance—if the noble Lord, Lord Marks, chooses to move his amendments to a vote. The point made by the noble Lord, Lord Faulks, was essentially the point the Minister will make, which is that what we are seeing here is the Government’s response to a particular set of offence types and that it is a policy decision on behalf of the Government, which they are entitled to take and which they see as a response to public demand. Frankly, I am not comfortable with the position I am taking on this, but the view of the Opposition is that we will abstain if the noble Lord, Lord Marks, decides to move his amendments to a vote.

Lord Wolfson of Tredegar: My Lords, this group of amendments broadly covers topics related to custodial sentences. We debated them at some length in Committee. The Government have listened carefully to the arguments put forward by noble Lords in support of these amendments. In particular, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, and others for discussing them with me. However, the Government remain unpersuaded that these amendments are necessary. I will briefly explain the reasons why and will begin with Amendments 71 to 78 in the name of the noble Lord, Lord Marks.
As the noble Baroness, Lady Jones of Moulsecoomb, reminded us, we had a lengthy debate in Committee on Clause 102 and minimum sentences. For the avoidance of any doubt, this clause does not introduce any new minimum sentences or new offences. Rather, it seeks to ensure that courts depart from imposing the minimum sentence only in exceptional circumstances. We are making sure that in these cases, where a minimum sentence applies, the criteria by which the courts can depart from the minimum sentence are consistent and are set out.
The amendments use the term
“contrary to the interests of justice”.
This term is not itself unusual, indeed at Section 59 of the Sentencing Code courts are directed to follow the relevant sentencing guidelines unless
“satisfied that it would be contrary to the interests of justice to do so”.
However, as the noble Lord, Lord Marks, accepts, these amendments would create a new and different test in respect of which a court can depart from imposing a minimum sentence when sentencing for these specific offences. The noble Lord’s amendment could be seen, as I think he tacitly accepted, as creating a lower threshold at which the courts may depart from imposing the minimum sentence, whereas the Government intend to raise and clarify the threshold.
As I explained in Committee, the necessity for this measure is supported by the data. In 2020, approximately half of all adults convicted for a third-time domestic burglary offence received less than the minimum sentence, even after taking account of the early guilty plea. We should not forget that minimum sentences are, in the main, for repeat offences which have a large community impact.
I know that concerns have been raised that Clause 102 may lead the courts to impose the minimum sentence in situations that they regard as unjust, because they cannot find the circumstances to fall within the ambit of “exceptional circumstances”. Concerns have also been raised that what constitutes “exceptional” might be treated as being subjective, leading to inconsistent application.
I can, I hope, reassure the House that courts are well accustomed to determining whether there are exceptional circumstances. There is a body of case law relating to the minimum sentence for certain offences involving firearms which already applies unless there are exceptional circumstances. This provision aligns the minimum sentence provisions with that test. Without wishing to turn Report stage into a seminar, in R v Nancarrow—the reference is 2019, EWCA Crim 470; old habits die hard—the Court of Appeal established a number of relevant principles, including that circumstances are exceptional if the imposition of the minimum sentence would be arbitrary and disproportionate. The court should also take a holistic approach and consider whether the collective impact of all the relevant circumstances makes the case exceptional. Therefore, judicial discretion for the court to consider fully the facts of the case and decide on the appropriate sentence in light of the statutory regime is retained in this measure.
I respectfully disagree with the noble Lord, Lord Marks, that this is an attack on judicial discretion. It is not a case of the Government not trusting judges; indeed, we have minimum sentences. The noble Lord is not suggesting that we should not have any minimum sentences, so the issue between us is not whether a judge has full discretion or no discretion—I am not advocating no discretion; the noble Lord is not advocating full discretion—but the ambit of that judicial discretion. I suggest that that is a matter of policy and therefore properly a matter for Parliament.
So, although I am grateful to the noble Lord, Lord Pannick, for his generous adjectives, which I hope to retain despite our disagreement on this issue, I would  say that this matter is properly one for Parliament because it is a question of setting out the ambit of judicial discretion. In our system, sentencing is a mixture of parliamentary legislation and judicial application. I therefore agree with the description given by the noble Lord, Lord Faulks: Parliament can properly decide what the ambit is of departing from a minimum sentence, as a matter of policy.

Lord Garnier: I hate to disagree with the Minister on this matter of policy, but of course Parliament can do what it likes. The question is whether that is wise.

Lord Wolfson of Tredegar: We must distinguish carefully between whether it is wise, which is a point we can make about any legislation, and whether it is proper. When the point is put against me that this is an attack on judicial discretion and a case of not trusting judges, I hear it as a matter of policy and constitutional propriety first and a matter of wisdom second. So far, I have addressed the point on constitutional propriety. My noble and learned friend is right to say that Parliament can do what it likes; my point is that, here, Parliament is doing what is constitutionally proper as well. As to whether it is wise, I set that out earlier.
In these circumstances, it is proper to endorse the exceptional circumstances test. A system in which 50% of people are not being given the minimum sentence is, I suggest, one in which something is going seriously wrong. Although I pay great respect to anything said my noble and learned friend, the point put briefly but clearly and firmly by the noble and learned Lord, Lord Hope of Craighead, ought to carry serious weight with the House.

Lord Pannick: The Minister mentioned a Court of Appeal authority on this matter. Can he confirm whether that authority suggests that, if a judge in an individual case believes it would be contrary to the interests of justice to impose the minimum sentence, that is a strong indication that there are exceptional circumstances?

Lord Wolfson of Tredegar: As we found in Committee, it is very tempting for Ministers to start parsing or glossing the term “exceptional circumstances”, and I hope the noble Lord will forgive me if I do not do so. That phrase has been used in statute and considered at the very highest level by the judiciary. The application of statute is properly a matter for the judiciary. In these circumstances, it is not helpful for a Minister on his feet to start parsing or glossing what has been said by the Court of Appeal. With genuine respect, I will leave that matter there and leave it for the Court of Appeal to explain what “exceptional circumstances” means. However, I repeat that the noble and learned Lord, Lord Hope of Craighead, said in terms that he found that test not a difficult one to apply—indeed, he found it an easier and more straightforward test to apply than the interests of justice.
Amendment 82A, tabled by the noble Lord, Lord Ponsonby of Shulbrede, with the support of the noble Lord, Lord German, would require a court imposing a custodial sentence of six months or less to state its reasons for being satisfied that neither a fine nor a community sentence could be justified.
The noble Lord, Lord German, reminded us of the Government’s position set out in 2020, which, of course, I stand totally by. There are plainly issues of rehabilitation and reoffending when it comes to short sentences, and that is why, as I explained in Committee, provisions in the Sentencing Code already ensure that custody should be a last resort in all cases, and for the shortest term possible. Even where the custodial threshold is met, courts retain discretion to impose non-custodial sentences after taking into account wider considerations. The code also places a duty on the court to explain its reasons for passing any sentence, and this can include an explanation of the factors the court has taken into account in making its sentencing decision.
This amendment also sets out a series of principles for courts to have regard to when imposing a custodial sentence of six months or less. For the most part, these are included in the independent Sentencing Council’s Imposition of Community and Custodial Sentences guidelines. As courts are already under a statutory duty to follow any sentencing guidelines relevant to the offender’s case, the Government do not consider it necessary to put these principles on a statutory footing.
As the noble and learned Lord, Lord Hope of Craighead, said, if an alternative sentence to custody can properly be handed down, it should be. While I do not propose again to gloss the sentencing guidelines, I respectfully agree that that is a useful summary of them. Again, as the noble Lord, Lord Ponsonby, said with his own experience, it is often only when community sentences have failed that a custodial sentence is handed down. That, again, is in accordance with the approach set out in the sentencing guidelines.
Of course, I listened very carefully to what was said by the noble Lord, Lord Bradley, with whom I have had discussions on this and other issues, and by the right reverend Prelate the Bishop of Gloucester—I was going to say the “campaigning” Bishop of Gloucester, but I will leave out the adjective, although she might like it. I hope that they will each be satisfied with—and certainly understand—what I have said and the reasons for the Government’s position on these amendments. For the reasons that I have set out, I urge the noble Lord to withdraw his amendment.

Lord Marks of Henley-on-Thames: My Lords, I am very grateful for the support that I have had for my Amendments 71 to 78 from Members of the House and for all the contributions to this important debate. I am also grateful to the Minister for his response. However, when one analyses it, what he was saying about discretion cannot survive a proper reading of what is meant by “exceptional circumstances”. Certainly, it is the case that authorities have analysed exceptional circumstances, including the Court of Appeal authority of Nancarrow that he mentioned.
Nevertheless, the nub of it is that “exceptional circumstances” means circumstances that are very unusual, and what the Minister did not address was my point that there are many situations which in general experience are commonplace, and the circumstances are common- place, but where it would nevertheless be unjust—contrary both to the judges and to any normal sense of justice—to  impose the minimum sentence. Because the circumstances are not exceptional, the judge would be bound to impose that sentence.
In answer to the points of the noble Lord, Lord Faulks, of course it is the case that judges are daily addressed on the basis that they should take an exceptional course of leniency, and it is not surprising that, as a recorder, he has been asked to take that course many times. However, that does not mean that he has been asked to find that circumstances are exceptional. It is interesting that the test for the sentencing guidelines and departing from them is “contrary to the interests of justice”, and not a requirement that there should be exceptional circumstances.
On the matter of policy, I respectfully suggest that the answer to the Minister’s point was comprehensively expressed by the noble and learned Lord, Lord Garnier. He used the word “wise”. It may be that the Government are entitled to legislate in this way, but is it wise? The Minister said that there was a difference between “wise” and “constitutionally proper”. The point I am making is simply that, although it may be a matter of policy in the sense that the Government can have the policy and can legislate—as the noble and learned Lord, Lord Garnier, said, Parliament can do what it likes—the question is: is it bad policy? We say that it is bad policy because it forces judges to do what they would not otherwise do, having regard to the interests of justice.
In respect of the point made by the noble and learned Lord, Lord Hope, of course it is right that it may be easier to apply a test of exceptional circumstances, because the authorities are so clear, but the point about the interests of justice, as the noble and learned Lord, Lord Judge, picked up in Committee, is that sentencing decisions are difficult.

Lord Hope of Craighead: I am grateful to the noble Lord for giving way. My point is that I would be drawn into arguments with myself about policy in deciding whether to do what Parliament has asked me to do. I am afraid that, as a judge, the constitutional position is that I have to accept what Parliament has laid down. I do not like minimum sentences; they are a very blunt instrument, and I can think of cases where I would not want to be driven down that road. But that is not my position as a judge. I have to follow what Parliament has said, but I have leeway with the phrase which has been inserted in the Bill. That is my point.

Lord Marks of Henley-on-Thames: My Lords, I understand that point. It is very rare that I disagree with the noble and learned Lord, but it is still the fact that what Parliament decides, judges must implement. If they decide that there is an exceptional circumstances test, that is far more limiting than an interests of justice test. That is my point and I will close on it—except to say that the default position under my amendment is to accept minimum sentences and simply to allow the judges to depart from those sentences where it is just to do so, having regard to all the circumstances. I do not believe that there has been any answer presented to that central position, on which I therefore wish to test the opinion of the House.
Ayes 90, Noes 159.

Amendment 71 disagreed.
Amendments 72 to 78 not moved.

Lord Duncan of Springbank: We shall now move on to the amendments that follow those to Clause 102. We begin with Amendment 78A. I should inform the House that the noble Baroness, Lady Brinton, will be taking part remotely.

Amendment 78A

Baroness Chapman of Darlington: Moved by Baroness Chapman of Darlington
78A: After Clause 102, insert the following new Clause—“Minimum sentence for an offence under section 1 of the Sexual Offences Act 2003 (1) This section applies where—(a) an individual is convicted of an offence under section 1 of the Sexual Offences Act 2003, and(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.(2) The court must impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it not doing so.(3) In this section “the required minimum term” means seven years.”

Baroness Chapman of Darlington: My Lords, I shall move and speak to the amendments in the name of my noble friend Lord Ponsonby—this amendment and Amendments 78B and 78E, as well as Amendments 78C and 78D, which the noble Baroness, Lady Brinton, has also signed.
The amendment would introduce a minimum sentence of seven years for rape, apart from cases in which the court is of the opinion that there are exceptional circumstances relating to the offence or offender that justify the court not doing so. This issue was raised in the previous debate. I should refer to my noble and learned friend Lord Falconer who spoke on this issue in Committee. I was going to be incredibly nice about him but I see that he is not here, so I shall just move on. He said:
“The framework for sentencing by the courts has to be set by Parliament. The way Parliament does this—as the two former Lord Chief Justices made clear—is by setting a maximum sentence, and the courts then reflect on what they conceive to be the justice of the case, as determined by the maximum. In exceptional cases—I use that word advisedly—it is appropriate for there to be minimum sentences as well. If there is a minimum sentence, the judge’s discretion is removed, but that is because Parliament is saying that a particular offence merits a minimum sentence except in exceptional cases … There is nothing wrong with Parliament doing that. Rape is, in our view, one of those cases.”—[Official Report, 10/11/21; col. 1807.]
The amendment does not force judges to pass unjust sentences. There should be a minimum sentence for rape, which should be departed from only in exceptional circumstances. Victims need to see this happen. The reason that we are particularly concerned about this issue is the wider context in the justice system, which we should not ignore because confidence in the justice system is at an historic low, with just one in 67 rape complainants seeing their case come to court. It can take four years for that process to be completed.
The latest data from the CPS shows that the number of rape convictions fell by 6.7% in the last quarter. There are 3,357 victims of violent and sexual crime who have already been waiting over a year for their day in court, and a further 654 victims of those horrific cases have been waiting for over two years. Victims are not reporting; too many of those who report would say that they would not report a crime  again; or they drop out of the process before any case comes to court. Parliament needs to show victims that it considers rape a crime of such seriousness that it is prepared to reflect that view in law.
Amendment 78B would introduce a maximum sentence of two years for publishing the identity of a sexual offences complainant. We are keen to test the opinion of the House on this amendment but we will, of course, listen to what the Minister has to say. This is an important issue and we should like the Government to, in some way, accept this measure. I am sure I do not need to explain to noble Lords just how distressing publication of the identity of a complainant is for the victim and their family. Fear of publication puts victims off reporting. The law understands this already and attempts to protect victims. Amendment 78B sends a signal that people who reveal names could have a sentence as high as two years. It does not say that that should happen in every case or that two years is a minimum sentence, but Parliament should mark the seriousness of this issue and the fact that people can be put under enormous pressure by the threat or fear of publicity.
In Committee, the Minister was sympathetic to the objective of this amendment and accepted that the unlawful naming of people whose identity is protected by law ought to be appropriately punished. We understand that the Attorney-General has invited the Law Commission to undertake a review of the law of contempt of court, with particular reference to the interface between that and the criminal law, including the specific breach offences under discussion today.
Because this offence causes so much distress to the complainants affected, and because this change could be made today without delay, we ask the Minister to consider accepting this amendment. If the Government bring forward additional legislation to respond to the Law Commission recommendations, they can then extend provisions to cover perhaps a greater number of types of victims whose identity is also legally protected. We would greatly welcome that and, if it could happen at the earliest opportunity, we would welcome that too.
Amendment 78C would create a new duty on the Secretary of State to nominate a government department to have the duty to inform victims and their families of the type of sentence, the time limit for application to the unduly lenient sentence scheme and that applications should be made to the Attorney-General. Amendment 78D proposes that, in exceptional circumstances, the time limit to apply to the ULS scheme should be flexible. This should include but not be limited to where the relevant body has failed to inform the victim or their family of the scheme and their rights under it until it is too late. Unfortunately, the ULS scheme is not sufficiently well-known by victims at the moment. We want victims and their families to be informed of the type of sentence that has been passed and what rights they have under the scheme so we can avoid situations where victims find out at only the very last moment that these rights exist and are unable to take advantage of them through no fault of their own.
Amendment 78D would allow the time limit of 28 days which applies to the ULS scheme to be extended in very exceptional circumstances. We accept that it should be extended in only exceptional circumstances, which should include but not be limited to where the relevant body obliged to notify the victim or their family of the existence of the scheme has failed to do so. These amendments make the ULS scheme more effective in that a government department would have responsibility for informing the victim and there would be some flexibility in cases where something has just gone wrong and the victim is unfairly disadvantaged.
Amendment 78E would ensure that those found guilty of abduction, sexual assault and murder would receive a whole life order as a starting sentence. My noble and learned friend Lord Falconer of Thoroton argued in Committee that a whole life term should be the starting point. The judge can of course take into account other factors, but there should never be a debate about whether a whole life term could be imposed, as we have seen.
I make clear to the Minister that it is his response on Amendment 78B that we are most keenly interested in today.

Lord Duncan of Springbank: My Lords, the noble Baroness, Lady Brinton, will be taking part remotely, so I hope she is there now. Baroness Brinton, are you with us?

Baroness Brinton: My Lords, I welcome this further opportunity to speak to Amendments 78C and 78D in the name of the noble Lord, Lord Ponsonby, on the unduly lenient sentence scheme, to which I have added my name, and to Amendment 82B in my name on home detention curfews.
First, I thank the Minister for trying to set up a meeting. It was unfortunate that he had to cancel it and that, because of the emergency coronavirus legislation, I was not free to meet him either yesterday or today. Further, as an aside, it is good to see the Government finally publish their consultation on a victims law and I hope that, after the consultation, legislation will swiftly follow. We have been waiting a long time and today’s amendments are very definitely there to help victims.
Turning first to Amendments 78C and 78D, in Committee, speakers made clear how the ULS scheme plays an important role in our justice system, providing the right for individuals to apply to the Attorney-General’s Office where they believe a sentence to be unduly lenient. As the Minister clarified earlier, the unduly lenient sentence scheme does not provide a direct right to appeal, but instead provides an individual, including victims of crime and bereaved family members, with the opportunity to have their concerns considered by the courts.
On Amendment 78C, we hope that the Minister will acknowledge both the intent and practicalities of such a proposition. The Government’s own victims’ code of practice is clear that victims deserve the right to be told about this scheme and that the responsibility for informing victims of crime about it is assigned to the witness care units. The problem is that the witness  care unit is the wrong authority to have this responsibility, because it interacts with only those who are witnesses in court, thus excluding many victims, including bereaved family members.
Amendment 78D seeks to allow flexibility in the 28-day time limit in exceptional circumstances, which would remain at the discretion of law officers when considering the application. If the Minister is concerned about the perceived risk this poses to the certainty for the offender, we believe that allowing a degree of flexibility in exceptional circumstances, as is given to the offender in this case, at the discretion of law officers, does not pose such a risk.
Part of the current problem, and its true risk to finality in sentencing, lies in the current backlogs facing our court system. One recent unduly lenient sentencing case has taken 10 months to reach the Court of Appeal. This does not resolve the fundamental problem that victims face, which is that the criminal justice system should ensure that victims are aware of their rights, have sufficient opportunity to exercise them and have the same rights of flexibility in truly exceptional circumstances. We believe that these amendments, rather than posing a risk to justice and its efficiency, seek to ensure that justice is truly served and that victims of crime have the right—as the Government have set out elsewhere—to a fundamental role in this process.
I turn now to Amendment 82B, which seeks to amend the policy framework governing the use of home detention curfews to exclude those who have previously breached protective orders and who have a history of stalking, harassment, domestic abuse and coercive control. During the debate in Committee, we discussed the fixated and obsessive nature of these offenders and the risk this poses to victims and the public. We gave worrying examples of cases where high-risk offenders were released on home detention curfew, only to appear outside their victim’s home or work, often despite court injunctions not to contact their victim.
After Committee, Victoria Atkins, Minister for Prisons and Probation, wrote to the Victims’ Commissioner for London, stating that the scheme provides a transition to the community for lower-risk offenders. If we are to believe that this Government take violence against women and girls seriously, can the Minister explain how they can consider those convicted of stalking and domestic abuse as lower-risk offenders? The Minister himself stated, in a recent event held by the Domestic Abuse Commissioner, that domestic abuse is at the top of the Government’s agenda and reforming and reframing their response is their top priority.
Support for this amendment would present a small step in the right direction to give victims of such violence the trust and confidence that the justice system is committed to tackling violence against women and girls. I will not press Amendment 82B to a vote, but would welcome a meeting to see if we can make some progress on reducing the contradiction highlighted by Victoria Atkins for something that would provide real support for victims.

Viscount Hailsham: My Lords, I appreciate that the noble Baroness who moved the lead amendment in this group is concerned primarily with Amendment 78B,  but perhaps I might be forgiven if I focus exclusively on Amendment 78A. This relates to the new clause, which would apply a minimum mandatory sentence of seven years to the offence of rape.
I am against this proposed new clause and think it profoundly wrong. I am against it for essentially two reasons. First, as one who has practised in the criminal courts for many years, I know that the offence of rape carries within it a very broad spectrum of culpability, from the most serious kinds of offence to ones significantly less serious. That should be reflected in the ability of the judge to impose the appropriate sentences.
Already a life sentence is the maximum that can be imposed. This takes me to my second point—that I really think the amendment is unnecessary. Anybody who goes to have a careful look at the guidelines published by the Sentencing Council as to how courts should approach sentencing for rape will come to the conclusion that public protection is already appropriately safeguarded. In fact, the spectrum of custodial sentences set out in the Sentencing Council guidelines is between four and 19 years. There is a whole host of considerations set out to assist the judge in determining what level of sentence should be imposed.
That takes me to the last point that I want to make. If you go to the Sentencing Council’s guidelines, as I am sure many of your Lordships have done, you will see a whole range of mitigating circumstances—as well, of course, as aggravating circumstances. Those mitigating circumstances are circumstances that a trial judge could take into account when imposing a determinate sentence of less than seven years. In the new clause proposed in Amendment 78A, nothing is said, for example, about what the consequences would be of remorse or contrition, nor about the making of an early plea, although that of course now attracts a mandatory reduction as a general proposition. Nothing is said about what happens if the defendant has been assisting the prosecution, nor about the time spent on bail. All those things are built into the sentencing guidelines of the council, but they do not appear in the proposed new clause.
If the amendment was to be accepted by your Lordships’ House, very considerable injustice would be done. I also happen to think that it is wholly unnecessary.

Lord Sandhurst: My Lords, I shall speak to Amendment 78B, on the maximum sentence for disclosing the identity of sexual offences complainants. I understand the motivation for this amendment and agree with the sentiment underlying it. The current level is obviously inaccurate and inappropriate, but it should not be addressed in isolation. It is correct that the present provisions for dealing with disclosure need revision, as they were passed in 1992 and plainly directed at conventional print, radio and TV media, antedating the internet. For newspapers and TV stations, a fine is generally appropriate. Since 2015, a level 5 fine has meant an unlimited one, which could run to hundreds of thousands of pounds for a newspaper that does this either deliberately or inadvertently. But we all know that today a malicious individual can cause similar damage with a post on the internet, and imprisonment may well be appropriate.
These are serious sexual offences—I do not deny that at all—but there are other matters of great sensitivity that will not be covered by this; it could well cause offence and upset if they are not dealt with at the same time, and they should all be looked at as a whole. The ones that I pull out in particular are, for example, to be found in Section 71 of the Female Genital Mutilation Act 2003. There is still only a fine if you disclose identity, when really it is a very sensitive matter—but, for historical reasons, it remains just a fine. So too if you disclose the name of someone involved in slavery—it is also only a fine—and so too with witnesses in the context of youth justice, which also results in only a fine. All those cases are dealt with in a magistrates’ court. Those things, which are all sensitive and difficult, would be better dealt with in the round. It might be that, for one category of offences, it was thought that the maximum sentence ought to be more than two years, and for others two years, but you want to look at them as a package and reach a considered decision.
This is a worthy amendment, in one sense, but it should not be pursued. Instead, I urge the Government to bring on the review with the Attorney-General that has been promised, really get cracking on it, and look at all offences of the unlawful disclosure of witnesses’ names. I am sure that, if the Government’s officials have time after Christmas, they could draw up a list of all those categories pretty swiftly and get on with it, so they are all dealt with as a whole. I call on the Minister to give appropriate assurances in that respect.

Lord Faulks: The noble Lord, Lord Sandhurst, identifies the need for consistency, and he is right. I wonder whether this amendment was not provoked by the appalling case of Phillip Leece, who not only committed rape but named the victim and posted grossly insulting material on the internet. That is something that was probably outside the scope of those who drafted this legislation. Newspapers are regulated—as I know, as the regulator of newspapers—but social media remains wholly unregulated. There is significant work to be done in this regard, which Parliament will grapple with when looking at the online safety Bill. This is just the sort of matter that a duty of care should deal with, in a proper system to prevent this sort of posting taking place.
I am sure that the Attorney-General is thinking carefully about contempt of court aspects. Of course, there is a power on the part of the judge to deal with the matter much more seriously than with the derisory fines that are currently imposed, but it is something that has to go to the administration of justice, and it is not always predictable or easy to identify what cases will or will not constitute contempt of court—so I welcome that.
Although I wholly understand why this amendment has been proposed, it seems that it would be stark and inconsistent with other provisions—but it addresses a mischief that very much needs to be addressed.

Lord Marks of Henley-on-Thames: My Lords, I shall speak briefly to this group of amendments. First, I turn to the minimum sentence for rape of  seven years, subject to an exceptional circumstances disregard or permitted departure. We acknowledge and endorse everything that has been said to the effect that rape is the most appalling crime. The terribly low success rate of prosecutions of which the noble Baroness, Lady Chapman of Darlington, spoke is acknowledged by everyone and has been the subject of a great deal of research by parliamentarians, policymakers and the Government. It needs addressing. The problems that she talked of, of low reporting rates and very high withdrawal of support, along with very low conviction rates, all need addressing. However, I am not convinced that a minimum sentence would address any of those things. Furthermore, for all the reasons, which I shall not repeat, I believe that the use of an exceptional circumstances test for the ability of judges to depart from a minimum sentence is simply wrong.
I also agree with the noble Viscount, Lord Hailsham, when he pointed out that, as anybody who has dealt with rape cases in criminal courts knows, rapes are so very different, the one from another. He was right to point to the very wide range of sentences endorsed in the sentencing guidelines, which mean that courts treat rape very differently, from the milder cases to the very serious cases that merit life imprisonment. I also have some concern that, in some cases, it would make juries even less likely to convict if they knew that there was a minimum sentence of seven years. I cannot support, and I do not think that we cannot support generally, the proposition that this seven-year minimum sentence should be legislated for.
By contrast, Amendment 78B, which would increase the sentence for publishing the identity of sexual offences complainants, is one that we do support. I suspect that it is not often realised quite how serious an offence this is. Sometimes there is a substantial risk of further harm when the identity of a complainant is published. There is very often significant fear on the part of the complainant if her name—as it is usually, although it may be his name—is published. There is almost always really significant distress caused by an unlawful publication. It is of course open to complainants to waive anonymity if they wish. But if they do not wish their identity to be published, to have the law flouted in the way the offence requires seems to me to justify a sentence of imprisonment in some cases. It is important to hear that these are only maximum sentences that we are dealing with.
I agree with the noble Lord, Lord Sandhurst, that there are other cases of unlawful disclosure that should be considered and reviewed but, that being the case in an ideal world—and we all know that these things do not happen as fast as they should—that is no reason for not doing anything at all. So we support Amendment 78B.
For all the reasons given by my noble friend Lady Brinton and, no doubt, to be given by the noble Lord, Lord Ponsonby—the noble Baroness, Lady Chapman, has already spoken to it—we support Amendment 78D on the duty to inform under the unduly lenient sentencing scheme, as well as the extension of the time limit for complaint in respect of unduly lenient sentences. In Committee we went through the reasons for the whole-life order to be taken as a starting point in cases of abduction, sexual assault and murder, and we do  support that—again, because it is only a starting point—and this ranks right up there with the other serious offences for which a whole-life order is appropriate.
We support for the reasons given by my noble friend Lady Brinton her amendment on home detention curfews as well.

Lord Wolfson of Tredegar: My Lords, these amendments, introduced by the noble Baroness, Lady Chapman, on behalf of the noble Lord, Lord Ponsonby, include those aimed at increasing penalties for sexual offences, those focused on enabling victims to challenge a sentence perceived to be unduly lenient, and those aimed at restricting additional offenders from release on home detention curfew. We debated these at some length in Committee, and we listened carefully to the arguments put forward by noble Lords in support. There are obviously some emotive and important issues here, and I welcome the opportunity to set out the Government’s position again this evening. But while the sentiment behind the amendments is fully supported by the Government, we do not consider them to be either necessary or the right course of action.
Let me start with a point on which I think there is common ground, as was set out by the noble Baroness, Lady Chapman. Victims must feel that they are put right at the heart of the criminal justice system. They must be supported so that they can engage properly at every step of what can be an incredibly difficult journey. As the noble Baroness, Lady Brinton, set out and referred to, last week we launched a package of measures to help achieve this: a consultation on a new victims’ law; a national rollout of provision of pre-recorded cross-examination for sexual and modern slavery victims; national criminal justice and adult rape scorecards; and a progress report on the end-to-end rape review action plan. We believe that those initiatives, individually and collectively, will raise the voice of victims in our criminal justice system and give them the justice they deserve. That especially includes the victims of often horrendous crimes of sexual violence.
I will address first the amendment regarding minimum sentences for rape. There is no dispute across your Lordships’ House that such crimes should be punished with sentences that match the severity of the offence. But the noble Baroness, Lady Chapman, is proposing that a court be required to impose a minimum custodial sentence of seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003,
“unless … there are exceptional circumstances … which justify it not doing so.”
Rape offenders already receive very significant sentences. The courts can, and do, pass sentences of life imprisonment. In 2020, of those who received a custodial sentence of less than life for a Section 1 rape offence, the average sentence was almost 10 years—117.5 months—an increase of almost 15% over the last decade. More than two-thirds of adult offenders sentenced for a Section 1 rape offence received a custodial sentence of over seven years, which is the minimum proposed by the amendment.
In this Bill, and in legislation introduced last year, the Government are ensuring that serious violent and sexual offenders, including rape offenders, sentenced to over four years now spend two-thirds of their sentence in prison, as opposed to having automatic  release at the halfway point. However, the nature of this offence and the wide range of circumstances which the court may need to take into account are complex, as my noble friend Lord Hailsham pointed out. I also agree with the noble Lord, Lord Marks of Henley-on-Thames, although, while I know what he meant, I am not sure I would use the word “mild” for any case of rape. I know he did not mean it in that way. What we are dealing with here is different degrees of seriousness of an offence, and I know he meant that.

Lord Marks of Henley-on-Thames: May I confirm that? It was the wrong word to use, and I apologise.

Lord Wolfson of Tredegar: I was keen to help the noble Lord out, because I think we all knew what he meant, but it is important in these areas to make sure that the record is really clear. I think we all agree that it is especially important, therefore, because we are dealing with different degrees of seriousness in a complex offence, that we maintain judicial discretion for the courts to consider the full facts of a case before them and decide on the appropriate sentence.
Although the sentence lengths for rape have increased, we have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for significant concern. Let me take a moment to mention some of the wider action we are taking: we have introduced legislation to tackle crimes including stalking, forced marriage, FGM and the those set out in the Domestic Abuse Act; we have committed to more than doubling the number of adult rape cases reaching court; we published the end-to-end rape review on 18 June; and we want to improve the number of rape cases being referred by the police, being charged by the CPS and reaching court. I have already mentioned the victims Bill. In July, we published the tackling violence against women and girls strategy, and we hope that also will help us better target perpetrators and support victims of these crimes, which disproportionately, although not exclusively, affect women and girls.
I turn to Amendment 78B, which would increase the maximum penalty for publishing the identity of sexual assault victims—currently a summary, non-imprisonable offence—to two years in custody. We do not dispute that the current maximum penalty is too low. Our concern, however, is that it would not be right to legislate, as the amendment does, only for the Sexual Offences (Amendment) Act 1992.
The naming offence in Section 5 of that Act protects complainants in sexual assault cases and was later extended to cover human trafficking cases as well. The effect of this amendment would be that the penalty for breaching these restrictions would be markedly different from the penalty for other offences also involving the breach of anonymity. Two of these, in relation to female genital mutilation and forced marriage, are modelled on the 1992 Act, and it therefore would be difficult to impossible to justify treating these identical offences differently from the 1992 Act offence.
There would also be glaring and unjustifiable discrepancies with the penalty for breach of other sorts of prohibition on identifying a participant in a  trial, some of which might have been imposed for a witness’s protection. I made that point in Committee. With respect, it was not directly addressed by the noble Baroness, Lady Chapman, and we therefore remain unpersuaded that it is appropriate to legislate selectively—

Lord Falconer of Thoroton: Having very kindly accepted that the maximum is wrong, the Minister’s only point appears to be that it would put it out of sync with these others. What work is being done in the Ministry of Justice and when can we expect to see legislation bringing them all to a position where there is an appropriate maximum sentence? This matters very considerably to victims of a Section 1 crime.

Lord Wolfson of Tredegar: My Lords, it certainly matters. I am a little concerned that the noble and learned Lord has seen my notes because that was precisely the point to which I was coming when he intervened. I am grateful for the intervention and for the points made by my noble friend Lord Sandhurst and the noble Lord, Lord Faulks, which I endorse. We need consistency and a fair approach in this area. We will begin by drawing up, as my noble friend Lord Sandhurst invited us to, a list of relevant offences, to ensure that we capture this issue fully.

Lord Falconer of Thoroton: I am sorry to interrupt again, but when that has been done, what is the next stage?

Lord Wolfson of Tredegar: There may be others, but I am coming to the next stage. The noble and learned Lord is very keen.
Also part of the framework is the law of contempt of court, which we must consider if we are to look at this area properly. In some circumstances, it might be an alternative to charging the appropriate breach offence, although conduct is usually dealt with as a contempt only where some harm to the administration of justice was likely. It also does not attract the investigatory powers which these offences attract.
My right honourable friend the Attorney-General has already independently asked the Law Commission to examine the law of contempt in this regard. I could not say this in Committee because at that point I was saying that we would invite the Law Commission to do it. In fact, they have already committed to such a review. We have asked them to add in the breach of anonymity offences, both for Section 5 and related offences.
The noble and learned Lord says “years”. It will take some time, but the alternative is to legislate on a piecemeal basis. I do not want to explain to a victim of FGM who is named why she is being treated less favourably than a victim of any other offence. We want consistency in this area. If we have a Law Commission to ensure that we look at the law holistically in an appropriate way, it will deliver a coherent approach to penalties for all offences involving breach of reporting restrictions.
Moving to Amendments 78C and 78D, the unduly lenient sentence scheme allows anyone—the CPS, victims, witnesses, or members of the public—to ask for certain  sentences imposed by the Crown Court to be considered by the law officers, where that sentence is felt to be unduly lenient. I underline that point. Anybody can ask the law officers to consider referring the sentence to the Court of Appeal. I am afraid that a number of my colleagues at the Bar have taken the view that it is somewhat improper for Members of Parliament to invite the Attorney-General so to consider. I underline again that anybody can ask the Attorney-General to consider referring a sentence to the Court of Appeal. That is how the scheme operates. It is then for the law officers to decide whether to refer the case to the Court of Appeal, which may then decide to increase the sentence.
Amendment 78C places a duty on the Secretary of State to nominate a government department to inform victims of the details of the scheme. We recognise the importance of victims being aware of the scheme and being clear on how it operates. However, the duty is not necessary. The revised Code of Practice for Victims of Crime—the victims’ code—which came into force on 1 April, already provides victims with the right to be informed about the existence of the scheme. Furthermore, it includes a requirement for the witness care unit to inform victims about the scheme following sentencing. Therefore, that provision is unnecessary.
Turning to the timing point, an application by the law officers to the Court of Appeal must be made within 28 days of sentencing. The absolute time limit of 28 days reflects the importance of finality in sentencing. That point of finality in litigation is sometimes marked by a Latin tag, which I will not trouble your Lordships with, but it is particularly important when it comes to sentencing. While we will keep the operation of the scheme under consideration, including the time limit, there are no current plans to remove the certainty of an absolute time limit in any circumstances.
Amendment 78E would expand the circumstances where a whole life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. I explained in Committee that of course we sympathise enormously with the concerns that underpin this amendment, but we do not agree with its purpose. Our current sentencing framework can and does respond to these horrendous cases. The courts can, and do, impose lengthy sentences that fully reflect the gravity of this type of offending and the appalling harm that it causes to families of victims and the community generally.
All those convicted of murder already receive a mandatory life sentence. The murder of a single victim involving sexual conduct has a starting point, when determining the minimum time to be served in prison—the tariff, as it is sometimes called—of 30 years. This can be increased depending on the circumstances of the individual case and the presence of aggravating factors. Additionally, as was demonstrated by the sentencing of Wayne Couzens for the horrific murder of Sarah Everard, there is an existing discretion to impose a whole life order if the seriousness of the individual case is exceptionally high, which Wayne Couzens received.
Amendment 82B, tabled by the noble Baroness, Lady Brinton, seeks to prevent the release on home detention curfew of any offender who has previously breached a protective order and who has been convicted  of offences relating to stalking, harassment, coercive control, or domestic abuse. I set out in Committee the importance that we attach to this area. The noble Baroness was quite right to refer to my comments made in another part of the Palace at an event organised by the right reverend Prelate the Bishop of Gloucester, and I stand by them.
I have asked officials to consider the risks presented by such offenders, to ensure that all appropriate safeguards are in place to protect victims and the public and to ensure that unsuitable offenders are not released on home detention curfew. Once that review is complete, I will update the noble Baroness and the House. Despite the fact that we were not able to arrange a meeting in the last 48 hours, I or the Minister for Prisons will be happy to meet with her. I do not believe that legislating on this matter is proportionate or effective in safeguarding victims. The safeguarding can be achieved via the policy framework, without the need for any change in statute.
We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crimes. For those reasons, I urge noble Lords not to press these amendments.

Baroness Chapman of Darlington: I am grateful to noble Lords, and particularly to the Minister for his comments in response to the amendments tabled by my noble friend Lord Ponsonby.
On Amendment 78A, clearly it is right that mitigating factors are taken into account and that remorse, guilty pleas and assistance with prosecution are considered; no one is arguing anything to the contrary. However, I put it gently to noble Lords that it is important that sentencing adapts as attitudes in society evolve. I suggest to those noble Lords who were so outraged that we might want to change the system with regard to rape that attitudes towards that crime have changed. That is a very good thing and we should welcome it. However, public confidence in how rape is handled is in crisis.
All rape is violent, often with life-changing consequences for the victim, and we will continue to press the Government on this. I am pleased that women are speaking up with confidence and demanding this kind of change. Speaking personally—although I know that is not something you can properly do from the Dispatch Box—I find the frequent emphasis in this discussion on the idea that there are different degrees of rape, that “There’s rape and then there’s rape”, troubling. As I say, though, we will return to this in future because the women of this country will demand that of us.

Viscount Hailsham: On the question of a spectrum of culpability, does the noble Baroness not realise that the sentencing guidelines take that as their premise? That is why the spectrum in custodial sentences is between four and 19 years, because the sentencing guidelines recognise that there is a broad spectrum in culpability and that, as well as aggravating circumstances, there can be mitigating circumstances.

Baroness Chapman of Darlington: Of course I realise that; I have read the sentencing guidelines. All I am saying is that attitudes in the country outside this House have changed, and the view of a minimum  sentence of four years, as opposed to a minimum of seven, is changing, and we are reflecting that in our amendment. That is the point that I am making. I beg leave to withdraw the amendment.
Amendment 78A withdrawn.

Amendment 78B

Baroness Chapman of Darlington: Moved by Baroness Chapman of Darlington
78B: After Clause 102, insert the following new Clause—“Maximum sentence for publishing the identity of a sexual offences complainant (1) Section 5 of the Sexual Offences (Amendment) Act 1992 is amended as follows.(2) In subsection (1), leave out “and liable on summary conviction to a fine not exceeding level 5 on the standard scale”.(3) After subsection (1), insert the following subsection—“(1A) A person guilty of an offence under this section is liable—(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine not exceeding level 5 on the standard scale, or both, or(b) on summary conviction, to imprisonment for a term not exceeding twelve months, or a fine not exceeding level 5 on the standard scale, or both.””

Baroness Chapman of Darlington: I will explain why we want to move this amendment. I am afraid we are unpersuaded by the Government’s response on this issue. There are many victims of this problem today and they could be better protected now. The failure to do so leaves complainants subject to publication without adequate justice, and that is putting people off reporting crime. This is a problem today, and the Minister’s position—the inability to fix it for all complainants—is, frankly, beneath him. I would like to test the opinion of the House on this issue because I think there is sufficient concern about it in many areas that we really need to make some progress on it now. I beg to move.
Ayes 149, Noes 149.

Amendment 78B disagreed.

Lord McNicol of West Kilbride: My Lords, there being an equality of votes, in accordance with Standing Order 55, I declare the amendment disagreed to.
Amendment 78B disagreed.
Amendments 78C and 78D not moved.

Amendment 78DA

Baroness Noakes: Moved by Baroness Noakes
78DA: After Clause 102, insert the following new Clause—“Maximum sentence for an offence under section 70 of the Sexual Offences Act 2003  In section 70 of the Sexual Offences Act 2003 (sexual penetration of a corpse), in subsection (2)(b) (penalty on conviction on indictment), for “2” substitute “10”.”

Baroness Noakes: My Lords, this is a probing amendment. It increases the maximum sentence for the offence of sexual penetration of a corpse in Section 70 of the Sexual Offences Act 2003 from two years to 10 years.
I am tabling this amendment in the light of the appalling case of David Fuller. He was convicted month of the murders of two young women more than 30 years ago. When the police finally caught up with him, thanks to advances in DNA techniques, they discovered in his home evidence of some appalling sexual crimes, including 4 million images of sexual abuse. The most terrible of these images had been created by David Fuller himself. He had recorded himself sexually abusing the dead bodies of women and girls in the mortuary of the Tunbridge Wells NHS hospital—both the old one in Tunbridge Wells and its replacement in Pembury. This is where I live, so it is an issue that is close to my heart. It is also close to the heart of my right honourable friend Greg Clark, the MP for Tunbridge Wells.
Fuller had raped the dead bodies of more than 100 women and girls over a period of 12 years up to 2020. The youngest was nine; the oldest 100. Sometimes he repeated the offence on the same body. He kept records of his acts. There are no words to describe the depths of this kind of depravity.
Last month, Fuller pleaded guilty to the two murder charges, to 33 counts of the sexual penetration of a corpse involving 59 individual victims and to some other important charges. Unsurprisingly, this afternoon he was given a whole life sentence.
This case has shone a spotlight on the maximum sentence of only two years which is available for the offence of sexual penetration of a corpse. The judge today emphasised that there is no sentencing guideline for this offence. She in fact gave Fuller a 12-year concurrent term for the totality of his other crimes.
However, let us suppose that the evidence for the murders had not been strong enough for a conviction and that the only viable charges against him were for sexual penetration of a corpse, or perhaps that the evidence stood up for only one act of penetration of a corpse. He might then have been given only a two-year sentence, and could even perhaps have walked free this afternoon, taking account of his time in remand. I do not believe that this makes any kind of sense.
Although the immediate victims were not alive, this is not a victimless crime. The families of those victims are victims too. They feel a great sense of pain and outrage that their mothers, daughters and sisters have been desecrated. That has compounded their grief, as today’s statements in court made clear. The two-year maximum stands in stark contrast to the main rape and penetration offences in the 2003 Act, which carry life terms.
The sexual penetration of a corpse offence was created for the first time in the 2003 Act. I was the lead opposition spokesman when your Lordships’ House  considered the then Sexual Offences Bill, and I am delighted that the noble and learned Lord, Lord Falconer of Thoroton, is in his place, because he led for the Government when that Bill went through your Lordships’ House. He may recall why the offence was settled at two years. In any event, I do not think that at the time any of us could have had a case as awful as that of David Fuller in our minds, because the facts of that case are simply unimaginable—at least, they were.
My amendment selects 10 years rather than two in order to make the point that sexual penetration of a corpse is a much more serious offence than a two-year term implies. I claim no expertise in criminal law or sentencing, and wiser heads than mine will know how best to calibrate this offence. The purpose of tabling my amendment is to hear from the Government what they intend to do about the offence, and when they will do it. I am aware that my right honourable friend the Secretary of State for Health and Social Care informed the other place that the Government would review the offence, but he did not put a timetable on it. It is a fairly simple issue, and I hope my noble friend the Minister can be clear with the House about what the Government will do. I beg to move.

Lord Sandhurst: My Lords, I support the amendment. I am conscious that the Bill is on Report. This is a probing amendment, but it raises an important and pressing point. I hope I shall be short. I make four points.
If this offence is taken on its own, I think we would all agree that two years is plainly an insufficient maximum. Let us assume for these purposes that an offender comes before the court, is not a murderer and has not been a party to the death of any victim, but has had access to the bodies and has done what Mr Fuller did. It appears that he committed many offences of sexual penetration of corpses to which he had access by virtue of his employment. It may not be common, but we simply do not know what someone may do in the future. It is an appalling prospect, but we simply cannot exclude the possibility that a non-murderous necrophiliac might offend in a similar way. I suggest that we must do all we can both to deter and to punish in that event. If there is no murder but a large number of offences, is 10 years really too long a maximum sentence for someone such as Mr Fuller?
I talk about punishment because it is impossible to contemplate the horror of a relative who learns that their deceased loved one was defiled in this way. We as society owe it to such a relative, who is truly a victim, to show that we respect the dead and will mark such behaviour in a way that demonstrates that respect.
When I was approached by the noble Baroness to help her on this matter, I asked the Library to do some research. It very helpfully uncovered materials relating to the debate that took place in 2003. There was the Home Office’s consultation paper of July 2000, and section 8.6 addressed this issue. It disclosed that at that time, somewhat to the authors’ surprise, there was no offence that made necrophilia illegal. The consultation disclosed that there was
“no firm evidence of the nature or the extent of the problem”,
but agreed that
“human remains should be shown respect”
and noted that
“relatives and friends would be deeply distressed”.
In section 9.2, that consultation addressed sentences for a range of offences. From my reading of the Government’s response in November 2002—I do not criticise anyone for this—it appears that the authors at that point may have proceeded on the assumption that the offence would follow and be additional to a charge of murder or manslaughter. In other words, it was not looked at on the basis of a stand-alone sexual deviant.
If we are looking for a comparator, brief research has disclosed what happens in Canada, where the offence carries a maximum sentence of five years. I question whether even that is sufficient in the worst case, but I leave it to others to consider.
To conclude, this is a most unpleasant criminal offence. It must be reconsidered as a matter of priority. The current sentence for the stand-alone offence is simply too low. I urge the Government to address this with dispatch and not to delay once the immediate clamour over the Fuller case has died down. It is not difficult. It simply needs a suitably steep maximum sentence to mark its gravity.

Lord Wolfson of Tredegar: My Lords, Amendment 78DA, moved by my noble friend Lady Noakes, is in regard to the maximum penalty for the sexual penetration of a corpse. I first place on record my shock and horror at David Fuller’s horrifying offending; my thoughts are with the victims and their families. I assure the House that the Government are committed to looking in detail at what happened in this appalling circumstance to ensure that it simply never happens again.
As we have heard, just this afternoon Mr Fuller has been sentenced to a whole-life term of imprisonment. An investigation into other aspects of his offending is ongoing. The House will understand why I will not comment on the sentence passed in this case, but I thank all those in the police, the CPS and the wider criminal justice system for bringing him to justice.
The Government have announced an inquiry into the events that occurred in hospitals in Tunbridge Wells. This will help us understand how the offences took place without detection in the trust, identify any areas where early action by the trust was necessary and consider wider national issues, including for the NHS as a whole. The Government have already made good progress in establishing the independent inquiry. I understand from colleagues in the Department of Health and Social Care that the inquiry’s chair, Sir Jonathan Michael, has developed draft terms of reference already and will engage with the families on them in the new year before they are published.
As well as that inquiry, I assure the House that the Ministry of Justice is reviewing the existing penalties available for the offence of sexual penetration of a corpse. The statutory maximum penalty for that offence is, as my noble friend indicated, two years’ imprisonment.
I reassure your Lordships, however, that that is the statutory maximum penalty for one offence. Where the offence is sentenced alongside other offences, each  offence will be sentenced individually. The overall sentence passed will therefore reflect the totality of the offending behaviour.
I also pay tribute to my noble friend’s work in supporting the inclusion of this offence when it was debated during the passage of the Sexual Offences Act 2003. It was created primarily to deal with a different circumstance—different circumstances were in mind at the time. The focus was on the situation where a murderer abuses the corpse of their victim after death, and it was therefore perhaps thought likely that those sentenced for this offence would, for the most part, be sentenced at the same time for another offence, such as murder—which of course carries a mandatory penalty of life imprisonment. As we have seen in the Fuller case, that is sometimes the case but may not always be so.
It is therefore right that, in view of this depraved—which is not a word I use often, but I think is appropriate in this context—and horrifying offending where we have seen an individual commit this offence independently of other offending in relation to that victim, we review the current statutory maximum penalty for the Section 70 offence. It may also be that this review, and the public inquiry into the offending in hospitals in Kent, will highlight other issues that need to be considered relating to the existing offences that deal with sexual abuse of corpses.
To be clear, I am not saying—I cannot this afternoon —that the Government will adopt the specific approach taken in this amendment, but neither do I rule out future changes to the maximum penalty. Rather, we are reviewing the maximum penalty in its context, and speaking with DHSC officials to ensure that learning from the inquiry into events in hospitals can be taken into account into our review of the penalty. That is the best way to reach a considered conclusion about how to amend Section 70 appropriately.
As to timing, the inquiry into the events at hospitals in Kent is due to publish interim findings in the new year, with the full report at a later stage. I will write to my noble friend, and place a copy in the Library, with any further information on the inquiry’s timescales as soon as that is available. Our review of the available maximum penalties is likely to follow a similar timescale, to ensure that findings from the inquiry can be taken into account in our conclusions. It is therefore important that we await the findings of the inquiry before amending the current legislation. I listened carefully to how my noble friend opened this short debate, and I therefore ask her formally to withdraw this amendment.

Baroness Noakes: My Lords, this has been a short but important debate, and it will be particularly important for the families of those who died who were abused by that man. Clearly, they have suffered hugely. My noble friend is right to point out that I made clear that this was a probing amendment and therefore have no intention of pressing the amendment. My main purpose was to ensure that the Government are set upon dealing with this issue properly, and I was much reassured by what I heard from my noble friend. With that, I beg leave to withdraw my amendment.
Amendment 78DA withdrawn.

  
Clause 103: Whole life order as starting point for premeditated child murder
  

Amendment 78E not moved.

Amendment 79

Lord Blunkett: Moved by Lord Blunkett
79: After Clause 116, insert the following new Clause—“Independent commission to consider proposals for reform of the IPP sentence(1) Within three months of the passing of this Act, the Secretary of State must establish an independent commission to consider proposals for reform of the imprisonment for public protection (”IPP”) sentence.(2) The remit of the commission must include, but is not limited to, the consideration of proposals that—(a) would allow for existing IPP sentences to be terminated and for their replacement by arrangements appropriate to the circumstances of the individuals concerned; and(b) have regard to the interests of both public protection and meeting but not exceeding the original punitive intention of the sentence imposed.”

Lord Blunkett: My Lords, first, I thank everyone who has made it possible to get to this group of amendments before the business at 7.30 pm. I repeat the thanks, in which I think all others joined on 15 November, to those families and individuals who have been campaigning but also to Members from across the House. I am deeply grateful for the commitment of people in every group of your Lordships’ House and, I have to say, to those who have stayed this evening on the eve of recess. I hope that, by the time that the Minister has responded, it will be possible to see at least a modest way forward. I shall speak very briefly to allow that to happen in good time, so that we can conclude this debate before 7.30 pm.
I monitored the Commons Justice Select Committee’s interview yesterday with the Minister of State, Kit Malthouse, whose responsibilities of course bridge the Home Office and the Ministry of Justice, and I have to say that it was a dispiriting experience. That is why what commitments can be given by the Minister tonight will be so important, because, of all those to whom I have spoken in the department—and there have been several, indeed, multiple changes of Secretary of State and of Ministers—I trust and believe that the Minister understands the issues and is committed to trying to find a continuing way forward, and that therefore his word can be trusted.
I have to say that, when I hear comments, as we heard yesterday afternoon in that Select Committee hearing, about the constant recall of prisoners on licence being for their own good and being—I shall use the word that was used—beneficial, my heart sinks. If people, including officials operating in and overseeing the probation service, do not understand what is actually happening to prisoners at the moment and the dispiriting and hopeless nature of what is overcoming them, then we have a hopeless task in getting this right.
A number of forensic psychiatrists and psychologists in the criminal justice field have written to Members, including the Justice Secretary and the Minister, and will be putting evidence again to the Select Committee in the Commons. Their view has changed over the years, and they now believe that what we are doing is making it less likely that people will be able to be rehabilitated, change their behaviour and therefore get out of this terrible revolving door, which on 15 November we all of us across this House understood to be unacceptable and unsustainable. I heard yesterday a concession that there might well be individuals who will never be released, so we can understand why progress must be made.
We have three amendments in this group. The first, which is in my name—and I am grateful for the support for it—can at least in part be dealt with by a recognition that the Government will take seriously the findings of the Select Committee in the other place.
Amendment 81, which substantially deals with the need for automatic referral at each stage of the prisoner journey, can be dealt with, I believe, if the Government are prepared to bring their own amendment back at Third Reading.
Amendment 80, in the name of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for whom I have the most enormous sympathy and empathy, is something that I know, from monitoring what was said by Kit Malthouse yesterday and what has been said to me in my conversations with the Minister, the Government are not prepared—and will not in the Commons be prepared—to move on at this stage in relation to triggering Section 128 of the 2012 Act.
However, I believe sincerely that, if we can make a little progress in taking even small steps, that will set the ball rolling. What has happened with the campaign—with the pressure and the interest on this issue from people not just in this Chamber tonight but right across this House—has transformed the climate and the landscape for going forward. If we can have new guidance and procedures for the probation service, we can start to take seriously what is happening, instead of, as yesterday, mouthing platitudes about an action plan. There is no plan, and there is little action.
Everyone who has provided evidence has shown that the review and the guidance needed for the probation service is desperate. It is not a trimming of the sail—the term used by one of the officials yesterday—but a lifeboat, because these individuals deserve justice. The Minister in Committee in the House of Commons said that this was unjust. I have accepted that it is totally unjust and has worked out in a totally unacceptable way. The Government acknowledging that and taking steps forward will at least give us momentum and start the ball rolling to put this wrong right. I hope that when we hear from the Minister in a few minutes, we can be assured that, as tentative as the steps may be, we are at last making some progress.

Lord Brown of Eaton-under-Heywood: My Lords, in speaking only to Amendment 80, I mention that I also support Amendment 81 in this group. Amendment 80 is the one amendment in this entire Bill that could reduce—if only by a tiny fraction—the prison population, which most of this Bill is, of course,  calculated to enlarge. More directly and importantly, it would go some small way towards ending a long-standing and ever-growing injustice, now recognised by many as the greatest single stain on our criminal justice system with regard to the cohort of IPP prisoners.
Amendment 80 applies only to some of the 1,700 or so IPP prisoners still in prison after the abolition of the whole discredited scheme nine years ago by LASPO. The amendment applies just to two categories within the 1,700: those who have now served more than 10 years beyond the tariff sentence—in other words, more than 10 years over the proper punishment for their offending —and those who have now served more than the statutory maximum determinate sentence prescribed by law for their offence. For these people this is manifestly preventive detention—frankly, it is internment by another name.
Your Lordships may like to know that, of the 570 IPP prisoners who have served more than 10 years beyond tariff, 200 had tariffs of less than two years and another 326 had two-to-four-year tariffs, so only very few—44—had more than four years. Your Lordships may also like to know that the UK has more indeterminate sentence prisoners, lifers and those on IPP, than any other of the 47 countries in the Council of Europe including Turkey and Russia.
Unlike life sentence prisoners, who are serving life for the gravity of the crimes they have actually committed, IPP prisoners are there simply for what they might do in future—what, in short, they cannot prove to the satisfaction of the Parole Board that they would not do on release. The uncertainty, hopelessness, utter despair and sheer misery of the prisoners and their families need no emphasis. It is small wonder that there have been many suicides and that the rates of self-harm among these prisoners are more than twice that of life sentence prisoners.
In urging this amendment, I stress the essential modesty of the proposal. It is purely a reversal of the burden of proof. It still leaves the public protected against those who can be shown to be dangerous. If the prison authority responsible for their continued incarceration, with all the various reports from prison staff, medics and so forth, can still show that the prisoner would pose an unacceptable risk on release, then they will not get out. The amendment goes nothing like as far as many would wish and think appropriate.
When the noble and learned Lord, Lord Clarke of Nottingham, who, alas, is not in his place, abolished this scheme in 2012, I understand he wanted to abolish it retrospectively as well as prospectively but was not permitted to do so. Michael Gove, after ceasing to be Lord Chancellor. recognised the intrinsic injustice in the Longford lecture. Matthew Parris recently wrote in the Times how the Government need the guts to reassess these cases.
I end, as I did in Committee, with this question: suppose one of these IPP prisoners with a tariff of a one-year sentence representing his criminality, is more than 10 years beyond that and still unable to discharge the burden of showing the Parole Board that he can be safely released without risk. What should happen? Should he remain incarcerated for another five, 10 or 20 years, or do we as a nation accept lifelong internment for this group? I hope not.

Lord Moylan: My Lords, I will speak to Amendment 81 in my name which is substantially the same as one I tabled and withdrew in Committee. I am grateful for the support of my noble and learned friend Lord Garnier, the noble Lord, Lord Blunkett, and the noble Baroness, Lady Burt of Solihull. We are dealing with a shame and a scandal. I shall not dwell on the nature of it because that has been well spelled out by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I shall come to the substance of the amendment because, of the three tabled on this topic, it is the one that is the most modest and helpful—indeed, it is intended to be most helpful to the Government.
Unlike Amendment 80, referred to by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, it does not concern those in prison serving an IPP, only those living in the community on licence—that is, those who have been released after the Parole Board has resolved that they do not represent a serious risk to public safety. At the moment, these persons are potentially subject to a lifelong licence. They can be recalled to prison for a breach of the licence conditions at any point. The only way the licence can be terminated is for the individual to apply to the Parole Board for a licence review after the expiry of the qualifying period, which is currently set at 10 years.
The Government have stated that they wish those reviews to be automatic in future, not requiring an application from the prisoner. My noble friend Lord Wolfson of Tredegar said on 21 July in a Written Answer to the noble Lord, Lord Blunkett,
“From September this year, officials will refer automatically to the Parole Board the case of every offender serving the IPP sentence who has become eligible to apply for termination of his/her IPP licence.”
I take that as a definitive statement of government policy: automatic referral. But yesterday, when I attended a meeting of the Justice Select Committee in the other place—referred to by the noble Lord, Lord Blunkett—and a question about this was put to Sonia Flynn, chief probation officer, she did not reply using those words. She said something rather different. She said that from September, the probation service had started proactively encouraging those who qualified to make an application. She had no explanation when asked by a member of the committee why, of the 500 persons currently entitled to apply for their licence to be terminated, only 20 had applied.
There is a good reason why the probation service is not carrying out the policy in the terms set out by my noble friend. Close examination of the current legislation makes it clear that the review can be undertaken only on the prisoner’s application. The Government cannot, therefore, make an automatic referral to the Parole Board without the prisoner’s active collaboration.
This amendment addresses that deficiency by amending the Crime (Sentences) Act 1997 to make an automatic referral to the Parole Board at the end of the qualifying period and, if the application is dismissed, annually thereafter. The referral does not depend on the acquiescence or collaboration of the prisoner, so it allows the Government to do what they have said they want to do and I hope it will command their support.  What it does not do is prejudge in any way the decision the Parole Board makes on that referral. That remains a matter for the board.
Noble Lords may wonder why an offender entitled to a review at the end of the qualifying period should not have made one on his or her own initiative. What is the need for automaticity? The simple truth, however, is that many IPP prisoners out on licence after that many years simply do not want to re-engage voluntarily with the criminal justice system they believe has treated them so unfairly, even when proactively encouraged—“It’s the Home Office, we have a form for you to fill in”. This is the answer to the question that put to the chief probation officer about why only 20 of the 500 had applied. Automaticity is a good and necessary thing. The Government agree and it would be very strange if they held out against the substance of this amendment given that it gives them the statutory power to carry out their own policy.
There is, however, another part to the amendment. I referred earlier to the qualifying period after which a review of the licence can be applied for or, if this amendment were passed, would take place automatically. That qualifying period is set by law at 10 years. The very last words of the amendment would have the effect of reducing the qualifying period to five years. To those IPP prisoners who received a short minimum term, the 10-year licence period is wholly disproportionate and can hardly be argued to be necessary for public protection because, as I said earlier, under this amendment the decision whether to terminate the licence remains with the Parole Board. Reducing the qualifying period to five years simply reduces the length of time after which an individual is entitled to a review. These people will be out on licence with the approval of the Parole Board and will have shown themselves safe in the community for five years. The number of IPP prisoners recalled after five years out on licence is very small and the latest data shows that no IPP prisoner committed a serious further offence five years or more post release. The risk to public safety in this essentially administrative change is zero.
I very much hope that my noble friend will accept the modest changes effected by this amendment. I hope that noble Lords will bear in mind not only the plight of the offenders affected by this sentence but also that of their families, who have stuck with them in many cases and struggled and fought for them and whose lives, as a family, have been disrupted, damaged and, in some cases, come close to destruction by the injustice done and the practical impossibility of recovering the life of a free citizen. I hope to hear encouragement and undertakings from my noble friend. If not, I give notice now that, reluctantly, I may wish to test the opinion of the House.

Lord Judge: It is such a folly, is it not, for legislatures to impose strict, rigid, statutory tramlines on sentencing decisions? That is what this problem stems from and I very much regret that the current Bill finds some more rigid, statutory tramlines to affect the sentencing decision.
What is the problem with this? It is very complex but I will try to sum it up. With the IPP, many of those subject to it or sentenced to it found that their  dangerousness as an individual was being predicted on the basis of strict statutory assumptions of general application. That is not the way that we should legislate.
No one wants anybody dangerous to be released. I do not mean to be light-hearted about this, but nobody has ever thought that the noble Lord, Lord Blunkett, was a soft, lily-livered—I do not know what the right epithet would be, but he has never been one of them. He was responsible for this Act. He was the Minister and, if I may say so, I greatly admire his courage in coming to Parliament to say that something went wrong.

Noble Lords: Hear, hear!

Lord Judge: We all know that IPPs are a failure. They were abolished years ago. They are not available. Why on earth do we continue to keep people subjected to them, incarcerated, unless they are indeed dangerous.
May I take a completely trivial example? My daughter is in South Africa. She hit the red line four days after the new virus appeared. If she comes back, she is subjected—or was—to 11 days’ incarceration in a hotel, which is trivial compared to anybody in prison. That has changed and the red lines have gone. Is it really being suggested that those who were in a hotel, in quarantine, should now continue to be in quarantine although people coming in from South Africa will no longer be subjected to it? Of course not; it is completely daft.
I regret to say that I think the current situation is daft. We really must try to help the Government get rid of this absurdity and—can we also remember?—enable justice to be done to a large number of individuals.

Lord Garnier: I think the last point made by the noble and learned Lord, Lord Judge, needs to be said often and loudly. The noble Lord, Lord Blunkett—I praised him in Committee—was brave enough to admit that this form of sentence was wrong. My noble and learned friend Lord Clarke of Nottingham abolished it when he was Secretary of State for Justice, but we are left with what I may call the detritus of this admitted mistake. What we must do now is clear it up. We have got rid of the sentence. As the noble and learned Lord said, it is no longer available. We are left with, as the noble and learned Lord, Lord Brown, just pointed out in a highly effective speech—and in Committee —hundreds of people remaining in prison long beyond their punishment tariff and others, as my noble friend Lord Moylan pointed out, on licence well beyond any sensible period.
I am a signatory to my noble friend’s amendment but, as I said in Committee, I could have signed any of the amendments to do with reforming IPPs. I say, as both a Member of this House and as a fellow trustee of the Prison Reform Trust with the noble Lord, Lord Bradley, that we have got to the stage now where nobody who has sense of justice or common sense could defend what we now have. All we are looking for is a way in which the Government can complete the task that my noble and learned friend Lord Clarke began when he was Secretary of State for Justice and which for some reason has not been completed in the eight or so years since the sentence was abolished.
Now is the time. If we are to have a Bill as huge as this, let us make good use of it by adding into it just provisions that do justice and which prevent men and women being incarcerated or on licence still for no very good reason. If I may say so, let us also get rid of this provision that is not doing the victims of their crimes any good either. Victims of criminal activity want justice both for them and for the defendant, but this is not justice for either the defendant or the victim.

Viscount Hailsham: My Lords, I rise briefly to support all three of the proposed new clauses, most particularly those proposed by Amendments 79 and 80. Looking back on my time in Parliament—nearly 40 years now—I think this was the most unfortunate decision taken in the criminal system. I pay tribute the noble Lord, Lord Blunkett, for coming to this House and putting before us his proposed new clause. Indeed, I pay tribute to the noble and learned Lord, Lord Brown, for his proposed new clause as well. A huge injustice has been done; as a parliamentarian, I view our contribution to it with a great sense of shame and embarrassment.
At the end of last week, a prisoner wrote to me to tell me that he had a tariff of two years imposed on him and has now served 14 years. I do not know the detail of his case but it is deeply troubling that that happened. In fact, I have referred his letter to the chairman of the Parole Board; I very much hope that she will look into it carefully. I can do no more. However, the truth is that the proposed new clauses before this House give us an opportunity to move forward. My belief is that they do not go anything like far enough, but we have to take the steps that are available.
I hope that my noble friend the Minister will respond sympathetically to the issues raised. I must say, if the opinion of the House is sought on any of these proposed new clauses, I will support them.

Lord Beith: My Lords, I certainly want to hear what the Minister has to say because I will go home very uneasy indeed if I pass up the opportunity for a vote to make it clear that this House rejects the system that has developed into a gross distortion of both our justice system and our sense of values about the circumstances in which someone can be incarcerated and those in which they are entitled to recover their freedom. We cannot tolerate this continuing. There is a hope that the Minister will say things that will enable us to feel that we are making some progress, but some of us will not sleep well tonight if we leave this place without being sure that some progress will be made.

Baroness Jones of Moulsecoomb: My Lords—

Noble Lords: Minister.

Baroness Jones of Moulsecoomb: I will be brief. There is an IPP fact sheet on the Ministry of Justice website that describes IPP sentences as “unclear and inconsistent” and says that they are not working because they
“have been used far more widely than intended, with some … issued to offenders who have committed low level crimes with tariffs as short as two years.”
I do not understand why the Government would continue to leave people to rot in prison when they have scrapped the system. Perhaps the Minister could explain that  particular conundrum. I have no legal training but I think I have an awful lot of common sense; to me, this is a clear injustice.
On rotting in prison, I have had a letter from the mother of an IPP prisoner. She said that two of his fellow IPP prisoners committed suicide because they felt that there was nothing left in their lives. Clearly, this is an injustice. Are the Government going to do something?

Baroness Burt of Solihull: My Lords, I just want to associate myself with the comments of my noble friend Lord Beith. I will reserve my comments until after the Minister has spoken.

Lord Wolfson of Tredegar: My Lords, I am extremely grateful to the various Members of the House who have spoken. These amendments relate to offenders serving sentences of imprisonment for public protection, known as IPPs. We had a heartfelt and powerful debate on this issue in Committee; the mood during today’s debate has been equally apparent. I should say that, throughout this time, I have personally received a lot of emails from families affected by IPP sentences. I put on record that I have read all of them, even if I cannot reply to them all individually.
Let me go through the amendments and set out the Government’s position clearly. First, I make it absolutely clear that the Government recognise that more work needs to be done in relation to this group of prisoners. On that basis, the Government intend to bring forward an amendment at Third Reading. I will give details of that amendment in a moment; let me first set out the work done so far.
We have put together a successful action plan dedicated to the rehabilitation and risk reduction of IPP offenders. We continue to work to increase opportunities for IPP offenders to progress through their sentences to safe release via this plan. Liaising with front-line staff and consulting stakeholders, officials regularly review and revise the plan to ensure that it addresses current operational challenges. As I noted in Committee, the Justice Select Committee in the other place has launched an inquiry into IPP sentences, as already referred to. Its stated aim is to examine
“the continued existence of IPP sentences and to identify possible legislative and policy solutions.”
The Select Committee is scrutinising what the Government are doing and will provide recommendations, which the Government look forward to hearing. I therefore underline that we are already doing effective work in this area.
Turning to the amendments put forward by noble Lords, Amendment 79 would require an independent commission to be created to consider proposals for terminating existing IPP sentences and replacing them with other arrangements as would be appropriate for the individuals concerned. The commission might also consider other matters. The Government’s long-held view is that legislating to resentence IPP offenders would cause an unacceptable risk to public safety. Any resentencing of IPP offenders would risk the immediate  release of many prisoners who have committed serious sexual or violent offences without a risk assessment and, in many cases, with no licence period. It is therefore vital to public protection that they are released only when the independent Parole Board determines that they may be safely managed in the community. Our aim is therefore to provide all those who continue to serve IPP sentences with every opportunity to show that they can safely be released by the Parole Board. The IPP action plan, which I mentioned a moment ago, is working. As of 30 September 2021, there are 1,661 IPP prisoners who have never been released. That marks significant progress compared with the more than 6,000 people in custody serving the IPP sentence at its peak, so we do not think that establishing a commission is necessary, given that officials already consult widely on the measures needed to reduce the IPP prison population safely.
Amendment 80 is intended to reverse what some consider to be the burden of proof for the test applied by the Parole Board when considering whether certain IPP offenders are safe for release. This would apply to IPP offenders who served a prison sentence of 10 years or more beyond the minimum term as directed by the court, or longer than the maximum equivalent determinate sentence, for their offence or offences. The current Parole Board release test is constructed so that the board must not give a direction for release unless it is satisfied that it is no longer necessary on the grounds of public protection for the prisoner to remain confined. For the offenders in scope of this amendment, the burden of proof test would be reversed. We discussed this matter in Committee when I reiterated our view that the amendment, in so far as it reverses the burden of proof, which some claim is inherent in the current test, would not have a material impact on release decisions for IPP offenders. The intention of this amendment is that the Parole Board assessment should be altered to ensure that more IPP offenders are released. We just do not agree that it would have the intended effect or is in any way necessary because the Parole Board would still have to undertake an assessment of the risk of harm and reoffending to make a judgment on whether the risks could be managed effectively in the community. It is not a matter where a burden of proof, however framed, would likely affect the underlying decision.
I now turn to Amendment 81. I place on record my sincere thanks to the tablers of the amendment, especially the noble Lord, Lord Blunkett, for the significant amount of time that he and others have dedicated to discussing this issue with me. I know that he and, indeed, everyone else in the House will listen carefully to what I am about to say. I intend to be very clear.
At Third Reading, we will bring forward a government amendment putting our policy of automatic referral of licensees on a statutory footing so that when the time comes that an application for release or termination of licence can be made, it is made. At this stage, we cannot accept a reduction in the qualifying period from 10 years to five years, but we will return to this issue once we have received the report and recommendations from the Justice Select Committee in the other place, which, as I said, is currently in the process of taking extensive evidence.
As I said, we do not think that establishing a commission would be an effective way forward. However, we are prepared to urgently consider automatic referral, as I said, and by the Secretary of State, as this would not detrimentally impact other conditions and could provide clarity for the individual serving out the licence conditions. To provide reassurance to your Lordships’ House and to those campaigning for change—particularly the family of IPP prisoners—the Government are willing to look at the guidance provided to the probation service and the procedures to be followed in supervising those on licence to minimise the risk of breach of licence and promote the rehabilitation of those who have served their sentence and are now on licence.
Although the Government are clear that it is the role of the Parole Board to assess risk when agreeing release on licence, we are mindful, as was indicated in Committee in the other place, of the potential injustice of the revolving door, and therefore take seriously the representations made by noble Lords in Committee and tonight. I reiterate that I am extremely grateful to those who have taken the time and effort to discuss these matters with me on a number of occasions over the last few weeks.
On this basis, I hope that the tablers of the amendments in this group will agree that the Government are acting in good faith, and will therefore not press their amendments this evening.

Lord Moylan: Before my noble friend sits down, I heard what he said, but if the Justice Select Committee in the other place was to recommend a reduction in the qualifying period from 10 years to five years, would he at least give his personal undertaking to do his very best to ensure that the Government found an opportunity to legislate for that at the earliest possible time?

Lord Wolfson of Tredegar: I am not quite sure of the meaning of a personal undertaking from me to ensure that the Government will find an opportunity. I hope the House will appreciate that I have personally put a lot of time and effort into this matter. When I see the Justice Select Committee’s report, that time and effort will not diminish.

Lord Blunkett: My Lords, I am not sure this is protocol, but it might help progress if I indicate to the House that, in discussions with the Minister, we had come to an understanding that we were taking steps forward in a way that would start to unlock this problem. In what he has just read out, the Minister has fulfilled what he agreed with me, and I trust him. On that basis, I recommend to colleagues that we accept the offer of the Third Reading amendment and the commitments that have been made on both procedure and recall, and we move forward on that basis this evening.

Lord Brown of Eaton-under-Heywood: My Lords, I cannot pretend to be wholly content, let alone happy, with what the Minister has been allowed to say today. It falls dramatically short of providing any sort of an answer to the final question I asked earlier: are we to keep these post-tariff detainees in effect endlessly and for life? It is surely no answer to my point to say  that reversing the burden of proof is unlikely to make any difference. That is even less a reason to object to this amendment.
I repeat that I am very far from happy but, as the noble Lord, Lord Blunkett, said, we have at least got some assurances, for the first time, that Ministers will look again at the plight of these IPPs and make some improvements at least to the recall regime—hopefully the first step in a re-evaluation of the entire remaining IPP problem. The other consideration that now weighs on me is the point that has been made that the Justice Select Committee in the other place is now deep into its full-scale IPP inquiry and its eventual report must surely inform the Government’s approach. In the meantime, alas, it provides something of an excuse for the Government to do little of great note.
It is clear that there is huge support for Amendment 80 around the House. What is ultimately needed is political will. For my part, let us hope that the Select Committee will call for proper reform and for the political will to deal with it, and that that is now shown. Meanwhile, I confess that I am deeply disappointed, as will be the IPP prisoners and their families. As the noble Lord, Lord Blunkett, points out, I have no alternative but to not press my Amendment 80.

Lord Blunkett: On the basis of the Minister’s statement, and not wanting a pyrrhic victory, which would end in defeat and even greater hopelessness for those we seek to help, I beg leave to withdraw Amendment 79.
Amendment 79 withdrawn.
Amendments 80 and 81 not moved.
Consideration on Report adjourned until not before 8.10 pm.

Postmasters with Overturned Convictions: Settlement Funds
 - Statement

Lord Callanan: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my honourable friend the Parliamentary Under-Secretary of State for Small Business, Consumers and Labour Markets. The Statement is as follows:
“Mr Speaker, with permission, I will make a Statement on the latest steps that the Government are taking to ensure that swift and fair compensation is made available to postmasters whose Horizon-related convictions are quashed.
The House is very well aware of the terrible impact felt by the many postmasters affected by issues with the Post Office’s Horizon IT system. These distressing consequences have been widely documented in the courts, in the 2019 GLO judgments and the more recent Court of Appeal judgments, as well as in the media. I have met postmasters personally to hear how their lives and the lives of their families have been affected  by these events. No one who has heard these stories could fail to be moved by the impact that these events have had on individual postmasters’ lives and their fight for justice over a number of years. I also pay tribute to colleagues on both sides of the House who have supported postmasters in their efforts to expose the truth and see justice done.
I would today like to take the opportunity to update the House on the latest steps the Government are taking to ensure that fair compensation is paid to postmasters with convictions that have been quashed due to Horizon evidence being essential to their prosecution. In the first instance, we worked with the Post Office to deliver interim payments of up to £100,000 for each eligible postmaster. I informed the House of the Government’s decision to provide funding for these interim payments last July. Government funding was necessary because the Post Office does not have the necessary funds to deliver the appropriate compensation. That is why it turned to BEIS, as its 100% shareholder, for funding for these interim payments.
I am pleased to report to the House that the interim payments are progressing well. The Post Office has received 66 applications for interim payments. Of these, 62 offers have been made, and of those, 50 have been accepted and payments made. Payments made to date have all been for the maximum interim amount of £100,000. I am pleased that these interim payments have helped to deliver an early down payment on the compensation due to affected postmasters in advance of full and final compensation packages being agreed. But that is only the first step. It is right that the focus now shifts to the agreement of full and final settlements. That is why the Government have been working with the Post Office to agree funding to facilitate the Post Office making final compensation payments to postmasters. As I announced in a Written Ministerial Statement to the House yesterday, the Government have now agreed to provide funding for that purpose. We are working with the Post Office to enable the final settlement negotiations to begin as soon as possible.
To be clear, the Post Office is not proposing a new compensation scheme to deliver full and final settlements. The Post Office is instead proposing to follow a process of alternative dispute resolution in which it will aim to agree an appropriate level of compensation with each postmaster, recognising the individual circumstances of each case. The Government support the Post Office in its aim of reaching fair settlements with postmasters via alternative dispute resolution, as we believe that this will lead to speedier delivery of compensation to postmasters.
I am not in a position to give significant detail today about this process, as the final detailed approach to these negotiations will need to be discussed and agreed between Post Office Ltd and individual postmasters and their representatives. I am sure that colleagues will agree with me that it is important that the Post Office listens to postmasters’ views and that these are taken into account in how these negotiations proceed. While it will be for the Post Office to negotiate settlements directly with claimants and their representatives, the Government will work closely with the Post Office to ensure that fair compensation is delivered. Given the  impacts on so many individual lives, it is right that the Government stand behind the Post Office and provide this funding to ensure that fair compensation can be made to individuals who were wrongly prosecuted and convicted on the basis of unreliable Horizon evidence. While compensation cannot change what is past, it can provide a degree of recompense for past wrongs.
In addition to providing compensation, it is important that we learn lessons so that something similar can never happen again. That is why the Government have set up the Post Office Horizon IT Inquiry and put it on a statutory footing to ensure that it has all the powers it needs to investigate what happened, establish the facts and make recommendations for the future. The inquiry has recently set out the full list of issues that it is investigating, and core participants have started to share key documents with the chair, Sir Wyn Williams, and his team. We will co-operate fully with the inquiry to ensure that the facts of what happened are established and lessons learned. I commend this Statement to the House.”
My Lords, that concludes the Statement.

Lord McNicol of West Kilbride: My Lords, I thank the Minister for the advance sight of today’s Statement delivered earlier in the Commons. I know from previous questions and debate in your Lordships’ House—and he has said it again tonight—that he agrees in no uncertain terms that the sub-postmasters’ and postmistresses’ scandal is an absolute disgrace. It is an absolute disgrace on so many levels: financially, judicially, on a human level, on a systems failures level and, most worryingly, on a government oversight level.
We all know the details, but it is worth repeating a few of them. Hundreds of sub-postmasters were sacked or prosecuted in the space of 16 years and wrongfully labelled as thieves and fraudsters by the Post Office and our judicial system. Their lives were made hell, and all because of an IT glitch in the Post Office system that was known about.
What makes this even more shameful is the lengths the Post Office went to to hide it. The fact that the Post Office spent £32 million denying these claims and bullying those wrongly accused into false guilty pleas is bad enough, but what makes the story even worse is that we finally got to the truth of the case only when it made it to one of the highest courts of this land. Tens of millions of pounds of public money were spent trying to stop the case going forward. This meant, in effect, that nearly £100 million of taxpayers’ money was spent defending the indefensible and covering it up.
But even though all postmasters’ and postmistresses’ convictions—or, the question is: is it all of them?—have now been quashed, or are in the process of being quashed, and we are working through compensation, this has come too late for many: many postmasters and mistresses who were wrongly convicted and imprisoned, and some who have, sadly, passed away. So far, many postmasters and postmistresses have received only a fraction of their costs and expenses, as we have heard. This simply is not good enough, especially as there are cases of postmasters who have had to remortgage their houses and borrow money from family and friends to cover their legal costs.
I listened to the words of the Minister, and we do appreciate them, but the Government should do more. They should do all they can to make sure that all—I repeat, all—of those wrongly accused postmasters and postmistresses receive the compensation they are entitled to as soon as possible. So, as much as I welcome the Minister signing off on a compensation scheme, it is disappointing that it has taken to this point to get a scheme in place. I hope that today marks the start of the Government ramping up their efforts to get the postmasters and postmistresses the compensation they rightly deserve.
For me, one of the most alarming and shameful aspects of the whole scandal is the failure of our courts and judicial system. In all the cases where postmasters were wrongly found guilty, the system believed the computers. We knew that there was a possibility of glitches within those computers. There were 640 cases; how did this not raise alarm bells inside the Post Office or on the board? I hope that the inquiry—I apologise for not going through the terms; the Minister said that they have been set—will look at the legal failures that only compounded and exacerbated the problem. The idea that a machine was believed in so many cases is extremely worrying.
We all agree that lessons must be learned from this. The Horizon system contained bugs, errors and defects, according to the High Court. We should not use evidence based on faulty technical systems as evidence in court, especially when the evidence provided by the Horizon systems could not be backed up by any personal human evidence.
In conclusion, I welcome the Government’s new scheme to ensure that postmasters and mistresses rightly receive compensation. The Government are the owners of the Post Office and—as we have heard in the other place and in your Lordships’ House today—they are accepting responsibility for that and taking action to make things right. The truth is that, for too long, the Government sat on the sidelines and made little or no attempt to stop this scandal, which was ruining hundreds of people’s lives.
May I press the Minister on some key facts? Can he confirm that compensation is for everyone? Those involved in both civil and criminal prosecution processes against them should receive justice. The Minister used the word “quashed”, but there are many other cases outside out of that remit where individuals have been affected.
Secondly, can the Minister also confirm that any settlement will not affect the Post Office’s core funding? The Post Office has a job to do, and we would not like to see its core funding affected.
Thirdly—the Minister has dealt with this in the past and I appreciate his involvement and engagement on this—those involved in the initial mishandling and subsequent failures, as well as the cover-up, need to take responsibility for their actions and their fair share of the blame. Questions have been asked about previous chief executives and board members in your Lordships’ House, but can the Minister say whether any of those involved at board level or senior executive level have been rewarded? That in itself would be a slap in the face for many of those involved.
Finally, I cannot finish a speech on this scandal without putting on record our thanks to the noble Lord, Lord Arbuthnot, and other Members across your Lordships’ House and in the other place, for their continued and unstinting drive for justice.

Baroness Randerson: My Lords, until 2011, I was an elected Member of the Welsh Assembly. I dealt at that time with the cases of a number of sub-postmasters from Cardiff and the surrounding area. It struck me immediately when they got in touch with me as a group, that it was highly unlikely that so many sub-postmasters were crooks. Here were a group of people who were upright, respected citizens at the hub of their communities. It seemed ludicrous from the start, and it is a scandal that this has been allowed to go on so long in the face of mounting evidence of a problem with the whole thing.
Some 736 sub-postmasters and postmistresses—an average of one a week—were prosecuted. There was really bad faith on the part of the Post Office, in that it pretended to the individuals that they were alone. It hid from them the fact that there were hundreds of others. It took a long time for many of them to discover that they were in the company of a very large number of colleagues. Some of them went to prison, following convictions for false accounting and theft. Many were financially ruined and were shunned by their communities. Some went bankrupt as they tried to make up the shortfall in order to avoid prosecution. Some committed suicide, and many have died since, some of them worn out by the fight that they had to undertake.
It is quite clear that the original process for postmasters to gain recompense was flawed. Some 555 of them who joined in a group action were forced to settle because they ran out of money to continue with their action. They were paid far less in compensation than they had paid to the Post Office to balance their accounts. Does this Statement here today mean that those people will now have their cases reviewed and receive proper fairness in their compensation?
Can the Minister give us a timeframe for when those affected by the scandal will have their cases dealt with? Will it be 2022 when we see the end of this terrible process, or is it, in his estimation, going to take longer? Will the Government undertake to compensate victims for consequential loss as well as financial loss as part of the commitment today? Many of them suffered emotionally so badly, and their families suffered too.
There is a doubt about the extent of what the Government are promising. The Statement refers to postmasters with convictions. Many were accused and were not convicted but nevertheless suffered. Many of them personally made up the moneys supposedly owed by them to the Post Office, and they have evidence of that. Will those people receive just compensation?

Lord Callanan: I thank the noble Lord, Lord McNicol, and the noble Baroness, Lady Randerson, for their points. Almost uniquely in my time on the Front Bench, I agree with virtually everything that both noble Lords have said. The noble Lord, Lord McNicol, said the situation was an absolute disgrace; the noble Baroness, Lady Randerson, referred to it as a scandal.  If anything, these are almost understatements when one considers the extent of the total travesty that has occurred. There is no party-political difference in these matters. This is not a recent scandal: it has gone on for decades under previous Labour Governments, the coalition Government and this Government. Obviously, we cannot go back and right the wrong of the clear, manifest injustice of the past, but we can provide adequate levels of compensation, and we are doing that.
I also want to join the noble Lord, Lord McNicol, in paying tribute to the parliamentarians on all sides who drew attention to this scandal. Hopefully, my noble friend Lord Arbuthnot will intervene shortly; he played a crucial role both in the other place and in here, as did a number of MPs on both sides, along with—to be fair—some campaigning journalists. Nick Wallis from the BBC played a major role in bringing it to account. Of course, there is a full inquiry going on now with statutory powers, which will hopefully get to the bottom of exactly what went wrong and who is responsible. My friend in the other place, Paul Scully, said that if there are any allegations against Ministers—either serving or previous—we will hold our hands up and acknowledge that mistakes have been made, which is only correct.
On the question of compensation, the funding we announced yesterday is for compensation for postmasters with convictions that have been quashed due to Horizon evidence being essential to their prosecution. There is a separate scheme—the historical shortfall scheme—that more than 2,500 people applied to for compensation, and the Post Office is working through those applications. The Government are ensuring that it is being pushed forward as quickly as possible. On the 555 who took the first court cases about Horizon against the Post Office, the settlement reached in 2019 was full and final. However, as the Minister for Postal Affairs said this afternoon in another place, it is important to acknowledge the work they have done in bringing the facts to light. The Minister for Postal Affairs has committed to continue to work with them to see what we can do.
On the question asked by the noble Lord, Lord McNicol, on whether the compensation will affect the Post Office’s core funding, the core funding to support its network is a totally separate matter from the funding for compensation that we are discussing today. That will proceed separately.
There is a limit to what I can say on the noble Lord’s point about whether those involved have been rewarded with senior jobs elsewhere, given that the inquiry is ongoing. However, he can refer to past comments I have made on that in this House. I certainly stand by my views on that point.
The noble Baroness, Lady Randerson, asked about timescales for delivery of compensation. The Post Office proposes to follow a process of alternative dispute resolution to reach full and final settlements with postmasters. The details of that approach will need to be discussed and agreed between Post Office Ltd and individual postmasters and their representatives. There is therefore a limit to what I can say about that because I simply do not know the answer to that question. However, the need to get swift payments is  why we have agreed the interim settlements, and we are going down the ADR process to try to get settlements as quickly as possible. I think those were the questions that I was asked.

Lord Arbuthnot of Edrom: My Lords, I acknowledge that this is very good news and I am grateful to my noble friend for the work that he is doing and has done behind the scenes on it. Can I press him on the question asked by the noble Baroness, Lady Randerson, about why this Statement is limited to sub-postmasters who have had convictions overturned? Surely the same moral principles apply not just to those who have been wrongly convicted but to those who were acquitted, to those who were wrongly sued, and to those, such as Lee Castleton, who were bankrupted and have not come out of that, including the 555 in the group litigation. In another place this afternoon the Minister hinted that he was softening the Government’s line on full and final settlement. Can my noble friend confirm that this is the case?

Lord Callanan: Before I answer the noble Lord’s question, I again pay tribute to the work that he has done over many years on this scandal to make sure that the world knows the truth about what took place. He makes a valid comment about the similarity of moral principles between the various cases. I can go no further than to confirm what the Minister said in another place. I will quote it to him in full:
“the 555 sub-postmasters who were part of the High Court case performed a massive public service by exposing the wrongdoings within the Post Office, and I recognise the deep frustration at the fact that because they agreed that the settlement with the Post Office would be a full and final one, they do not qualify for these compensation schemes. I have met some of those people and, as I said, I will continue to work on what more we can do.”

Lord Falconer of Thoroton: I, like everyone else, pay tribute to the noble Lord, Lord Arbuthnot, for the work he has done. I also acknowledge, as he has done, that this is significant, because it means that central government will fund all the compensation.
I welcome what the noble Lord, Lord Callanan, said in answer to one of the questions from the Front Benches. To paraphrase, he said, “We know there was a terrible scandal. What we’ve got to do now is provide adequate compensation for those who were affected.” We all understand what the scandal was; Mr Justice Fraser in the High Court has laid it out. It involved the Post Office, despite senior management knowing that there were problems with the IT, which was probably identifying wrong shortfalls, nevertheless allowing sub-postmasters to be charged in millions of pounds for those shortfalls, in some cases allowing them to be prosecuted and in others allowing those who were prosecuted to be sent to jail. With all the people who suffered in this way, the Post Office, knowing that the IT system was unreliable—that is what Mr Justice Fraser said—nevertheless allowed them to be prosecuted or sued and in some cases bankrupted. They are all entitled to compensation.
There are three categories. First, there are those who went to prison or were convicted; some of them may not have gone to prison. They must be compensated —there is no doubt about that. Secondly, there are  those not covered by the settlement—that is, people other than the 555. Can the noble Lord, Lord Callanan, confirm that they will be compensated? There is no other basis—no possible distinction that can be drawn with them—and there is no full and final settlement argument in respect of them. Thirdly, there is the group of people who were party to the settlement. Because he is well informed on this, the noble Lord will know that £56 million was recovered in the settlement and £46 million of that went on costs—he is nodding because he is clever and knows everything. That left £11 million for 550 sub-postmasters, whose average loss was £700,000. They were given £20,000—that is all they got. Surely, if we are keen that they be fairly compensated, that third category should also be compensated. Can the noble Lord deal with each of the three categories I have identified?

Lord Callanan: I agree substantively with many of the points that the noble and learned Lord made. He is tempting me to comment on the lawyers of his profession who took part in funding the case of the 555 members and the amount that went on legal fees, which perhaps I should not do in this House. I sympathise greatly with many of the points he made. Perhaps I would go even further and say that even when the Post Office knew about many of these problems, it appears it then attempted to cover it up. However, these facts will emerge in the inquiry that is taking place. The judge who is leading it is doing extremely well and is progressing with exposing that injustice.
Those outside of the 555 settlement are able to secure compensation through the historical shortfall scheme, which is the other one I mentioned in my response to the noble Lord, Lord McNicol. On the third category, Paul Scully in the other place—I quoted his words earlier—certainly went further than the Government have gone before on those points, and he has promised to work with those who were affected.

Baroness Ludford: My Lords, I absolutely join with others in welcoming this Statement and join in the tributes paid by the noble Lord, Lord McNicol, to the noble Lord, Lord Arbuthnot. I also welcome the Minister’s praise for the journalist Nick Wallis, which is the main route by which I heard about this.
My noble friend Lady Randerson talked about the way that individuals were picked off and given to understand that they were the only ones in trouble. There is a certain uncomfortable echo of that in the way that all these different categories are being treated differently and put in silos. We have these 66 people covered by this new scheme—those who have been acquitted. Then we have the 555 civil litigants who settled, and then I think the noble Lord said that there are around 2,500 applicants to the historical shortfall scheme, and there may be others. So there are thousands of other people who are all being treated differently. It seems that we need some kind of holistic approach, because they are all in the same moral boat. They are all the victims of the most appalling scandal. It is not a political scandal but a public scandal.
My honourable friend Alistair Carmichael in the other House had a debate in Westminster Hall in which he referred to the ongoing problems in the attitude of  the Post Office—the arrogance. Can we cut through that arrogance? Will the Government cut through it and treat all these thousands of victims of the Post Office in a similar way and not divide and rule, which is unfortunately the echo that is coming to me?

Lord Callanan: That is not an entirely fair comment. We as a ministerial team and a Government inherited this scandal. We are making endeavours within the powers and legal procedures that we have. We cannot ignore the fact that a civil court case has taken place and there was a full and final settlement. We have to negotiate within government for additional funding to be made available. I can assure the noble Baroness that the Minister for Postal Affairs is attempting to do so and is trying to work with the parties to bring this to a resolution. There is clearly moral equivalence between the different categories, even if there is not necessarily a legal equivalent at this stage. I am not a lawyer but, to be fair, there are differences in the cases. It would be right for the Government to try to compensate them all to the greatest degree possible within existing legal procedures, and my honourable friend is attempting to do that.
The noble Baroness referred to the culture of the Post Office. Again, her comment was a little unfair. The Post Office is under new leadership and it has committed to changing its ways. I can assure her that Ministers regularly discuss this matter with the Post Office. It has a programme of change, including the appointment of two recent postmaster non-executive directors to try to get some say in the senior leadership team from those working on the ground. I know that the new chief executive is committed to doing his best to overcome this scandal, right the wrongs and put the business on a sound footing in the future.

Baroness Neville-Rolfe: My Lords, having had previous responsibility for the Post Office, I am very well aware that Ministers are advised to stand firm on seemingly solid grounds, only for it to become clear in the long term that that is not defensible. This issue was probably the most disturbing thing that I had to deal with. Will the Minister take a deep breath and accept that the litigation involving 555 former postmasters who, as he said, performed a massive public service, was not conducted on a fair basis, and act accordingly?

Lord Callanan: I can certainly confirm what my noble friend has said in terms of briefings that I have given to Ministers. Indeed, similar briefings were given to me when I first started in the department. I went back and started to ask more questions. Paul Scully was new in his job at the time and I discussed the issue with him. We both agreed that we needed to do more. Since then, although it was not purely due to our actions, lots more information has come about, there have been various court cases and so on. It is certainly true that the culture of government is always to put up a firewall and try to stand firm. However, there are occasions when we just need to accept that things have gone terribly wrong and do what one can to put them right, which is what we are doing. I cannot go any further than the answers that I have already given in terms of compensation to the 555, but I have great  faith in the Minister for Postal Affairs, who is responsible for this matter, and he will do whatever he can within the system.

Viscount Stansgate: My Lords, I know that the Minister has said that there is an inquiry, but are the Government confident, given what they already know, that such a scandal can never happen again?

Lord Callanan: I hesitate to give the noble Viscount an unequivocal assurance because no one can do that. I can certainly say from the current ministerial team that we are absolutely determined to learn whatever lessons we are told to learn by the inquiry, take on board its recommendations and put in place whatever measures are required to make sure that it never happens again.

Baroness Stowell of Beeston: My Lords, we are clearly united in agreeing that this is a scandal, and in our regard and respect for my noble friend Lord Arbuthnot. I refer to the 555 sub-postmasters who settled without knowing that more evidence was to emerge. As we understand it, the Post Office knew at the time that it was still in the wrong and had not disclosed information that later came to light.
It seems to me that the 555 have been let down by people in authority every step of the way and, if we are not careful, we are going to let them down again when they are clearly being dealt an injustice at this time. I am grateful for what my noble friend the Minister has said already, but I hope he can agree and acknowledge just how strong the feeling is that this matter is dealt with. Furthermore, is Fujitsu going to be liable for any of the funding that will be necessary to pay this compensation?

Lord Callanan: I think the answer to my noble friend is that these matters will be considered by the inquiry. I may even be right in saying that court proceedings are ongoing involving Fujitsu, so I had better be careful what I say. Again, I cannot go any further than what I have already been said about the 555. It goes back to the answer that I gave to the noble and learned Lord, Lord Falconer, earlier. One reason why the legal fees incurred in that case were so high is because the Post Office fought every step of the way and put in place the maximum legal barriers to those poor individuals receiving the compensation that they deserved. That is one of the matters that I hope will be inquired into properly and that appropriate conclusions will be drawn.

Lord Cormack: My Lords, like others I pay tribute to my noble friend Lord Arbuthnot for what he has done, and to my noble friend the Minister, who has made his own personal discomfort and sense of collective guilt very plain whenever he has appeared at the Dispatch Box. However, I am always a bit suspicious when words like “as soon as possible” are used. Can we not have a deadline and a realistic date, such as 30 June 2022, when this can be fully settled? People’s futures are in suspense, and people are dying now. We really need proper justice, which must mean that they must have a date by which they will know that this thing has been settled once and for all.

Lord Callanan: I thank my noble friend for his comments, but ministerial discomfort is nothing, and massively insignificant, compared to the injustices and discomfort that has occurred to all these poor sub-postmasters. I cannot give him a date, for reasons that I set out earlier. We are going down the alternative dispute resolution procedure route because we think that it will bring about a faster resolution for the claimants. We have put in place interim payments so that some compensation is paid quickly and immediately, and I set out in my Statement how that has been paid. I can go no further than to say that we want it done as quickly as possible, which is why we have gone with the ADR procedure. Although I would like to, I cannot give him a final date.

Lord Fairfax of Cameron: I endorse and adopt almost everything that was said by the noble Lord, Lord McNicol, and the noble Baroness, Lady Randerson. I have one theoretical question. If the Wyn Williams inquiry is to find culpability on the part of individuals within the management and senior management of the Post Office, will the Government, as principal shareholders in the Post Office, consider bringing recourse actions against those individuals?

Lord Callanan: This is a complex issue, stretching back over many years and perhaps even decades, with decisions taken at various levels of the Post Office—and, of course, before that, when it was Royal Mail. We are totally committed to seeing these long-standing issues resolved, learning what went wrong through the inquiry and making sure that it cannot happen again. Whether the directors active at the time should be the subject of disqualification proceedings, again that is a legal procedure set out and managed by the Insolvency Service in accordance with the appropriate legislation, and I am certain that it will do that if necessary.

Police, Crime, Sentencing and Courts Bill
 - Report (3rd Day) (Continued)

Amendment 82

Lord Hodgson of Astley Abbotts: Moved by Lord Hodgson of Astley Abbotts
82: Clause 125, insert the following new Clause—“Discretionary early discharge of prisonersIn section 23 of the Criminal Justice Act 1961, after subsection (3) insert—“(3ZA) A Minister of the Crown may by regulations establish pilot schemes under which, where a prisoner is to be discharged on a Friday or the day before a bank holiday, they may at the discretion of the governor of the prison be discharged up to two working days earlier than the day on which the prisoner would otherwise be discharged, provided that—(a) it would be helpful for the prisoner’s reintegration into society, and(b) the prisoner has served a custodial sentence of more than 30 days.  (3ZB) The power to make regulations under subsection (3ZA) expires after the period of two years beginning with the day on which this Act is passed, and any pilot scheme must have concluded within that period.””Member’s explanatory statementThis amendment would enable trials of schemes for early discharge from prison which would reduce the bunching of releases on Fridays to take place during a two-year trial period.

Baroness Fookes: There is a slight mistake on the Marshalled List. It should read “After Clause 125”.

Lord Hodgson of Astley Abbotts: My Lords, Amendment 82 is concerned about Friday prisoner releases, or perhaps I should say the bunching of releases of prisoners on Fridays. I place on record my thanks for the support that I have received from around the House, from the noble Baroness, Lady Lister, and the noble Lords, Lord German and Lord Ramsbotham, and from NACRO, which has done a lot of work and research on this subject over many years.
There is always the danger at this stage of a Bill’s proceedings that you just rehearse familiar arguments and regurgitate facts that have been introduced before. I want to avoid that tonight and instead state briefly the central thesis that concerns me and my fellow supporters; state how we have changed and amended it to meet the points made by the Government at the earlier stage of the Bill; and then explain why we have retabled it in this new form today.
The basic thesis is that when you are sentenced, the court sets a calendar date for your release, not a day of the week. If that calendar date falls on a Saturday, a Sunday or—if it is a bank holiday—a Monday, the prisoner will be released on the previous Friday. A quick bit of mental arithmetic will show noble Lords that some three-sevenths of all prisoners are likely to be released on a Friday. Equally, it is clear to us all that Friday is the last day of the week and so, as the afternoon wears on, the local authority and voluntary services begin to wind down. Because a greater number of prisoners are being released, inevitably they are reaching the places where they can access those services later, so they are even more likely to be closing down. Added to that, the prisoner may well have been released from a prison that is some way from his home town, and in the event perhaps he has no home anyway.
Wrap all that together with the discharge grant, which has now been raised from £46 to £76, a sum on which he or she has to live for two or three days, after allowing for any travel expenses that may have been required. The result is that prisoners who may have no accommodation or support, facing the challenges of freedom after a period of incarceration, are having to do so on very limited financial resources. I suggest that it would be hard to construct a set of circumstances in which the temptation to reoffend could be greater.
In Committee, we argued that giving prison governors five-day flexibility on the day of release could help to tackle this issue of bunching and so improve the opportunities for rehabilitation and reduce the chances of reoffending. In his response, my noble friend Lord Wolfson, while recognising the force of the  amendment and that it had a core kernel of truth that needed to be addressed, argued—quite persuasively, in my view—that the amendment was deficient in three ways. First, he said that efforts to avoid the effects of Friday bunching needed to be focused on prisoners where the chances of rehabilitation were greatest—a fair point. Secondly, he said that a five-day release window was too long—I understand that. Thirdly, he said that was particularly significant in the case of short custodial sentences. So we sharpened our pencils and tabled a revised amendment to meet those criticisms.
First, we addressed the issue of rehabilitation so that now the amendment says
“it would be helpful for the prisoner’s reintegration into society”—
we focused on that. Secondly, we reduced the discretionary period from five days to two days. Thirdly, we limited the discretionary scheme to cases involving custodial sentences greater than 30 days, so that the reduction as a percentage of the sentence was greatly reduced.
With that, we put the amendment down in the Public Bill Office—but shortly after we tabled it, the Government published their Prisons Strategy White Paper. Paragraphs 139 and 140 address the issues and challenges of Friday releases, and do so in terms with which neither I nor, I suspect, my fellow supporters could disagree. I quote:
“We know that accessing timely support on release can be particularly challenging on a Friday, due to the limited time before services close for the weekend. We need to do more to support those with complex needs to access support on release such as older prison leavers who struggle to access social care and those that face practical challenges such as travelling significant distances to access services on time. We will therefore explore allowing prisoners who are at risk of reoffending to be discharged one or two days earlier at governor discretion”.
What is not to like? Nothing is not to like there. What is not to like is the fact that there is now a proposal for consultation. The next paragraph reads:
“Should we take a legislative approach, as described above, for those at risk of reoffending … If so, how should we structure this approach?”
If, as seems likely, primary legislation will be needed to give effect to any new scheme, and if it is to be preceded by a period of consultation, the chance to include anything in this Bill is gone—finished—and we will have to wait another two or three years before another appropriate legislative vehicle comes along. To put it no higher, this seems an unconscionably long time before addressing an issue that all parties agree is serious.
My noble friend Lord Wolfson was kind enough to see a group of us to discuss the ways in which we might tackle this. We explored the possibility of using an interim period to carry out some real-life practical research that could inform and improve the shape of any future Friday release scheme, when or if it is introduced.
We withdrew our amendment and tabled another one. This amendment allows the Minister by regulation to establish pilot schemes to test new approaches to Friday release that meet the outlines I described. These could form a useful part of the proposed consultation exercise. It was in this spirit that we ensured that the regulations had a two-year sunset clause.
I will pull all the threads together. It is generally agreed that the bunching of Friday releases has a number of undesirable features that are likely to increase the chances of reoffending. Secondly, it is agreed that any flexibility in release dates needs to be short and focused on cases in which the chances of rehabilitation are the greatest. We argue that to allow another two or three years to elapse before any action is taken to tackle this problem is, I am afraid, wrong.
The formulation of revised Amendment 82 meets all the policy objectives and at the same time provides a temporary bridge to enable real-life work to begin on testing the best way to tackle this problem in the future. I hope my noble and learned friend will recognise the efforts we have made to address and answer the points that he and his colleague, the noble Lord, Lord Wolfson, made. I do not for a moment suggest that the current drafting of the amendment is suitable so I hope my noble and learned friend will commit to taking it away and bringing back a redrafted version at Third Reading that meets the points we have all been making. I beg to move.

Baroness Lister of Burtersett: My Lords, I speak in support of Amendment 82, to which I was very pleased to add my name. I applaud the noble Lord, Lord Hodgson of Astley Abbotts, for his tenacity on the issue of Friday releases. I am also grateful to the Minister for meeting us last week and for his helpful letters on universal credit—which I am pleased to see is also addressed in the recent prisons strategy White Paper—and on how the power to avoid some Friday releases has worked in Scotland.
However, as I said to the Minister at our meeting, the latter tells us about the “what” of the small number of releases made under this power but nothing about the “why”. While I quite understand why the Scottish Prison Service could not, as the letter said, comment on the facts of individual cases, I would have thought it could have pulled out some patterns to help our understanding. Such an analysis would surely be of value to the Home Office, so I hope it will pursue the matter further. The fact that the Scottish Government are currently consulting on the possibility of ending Friday releases suggests they are not happy with the current—I would say—overbureaucratic procedures.
It is very encouraging that, as we have heard, the prisons strategy White Paper shows that the Home Office has been listening to concerns raised about Friday releases. I quite understand why the Minister does not want to pre-empt the outcome of the consultation, as he explained when we met. Hence, as the noble Lord, Lord Hodgson, noted, the amendment has been carefully drafted so as not to do so. Indeed, the adoption of pilots as envisaged would provide useful evidence to guide the Government when they are ready to legislate on the matter. Like that of the noble Lord, Lord Hodgson, my understanding is that it probably will require legislation.
The pilots could be established at the end of the consultation period so that they could take on board views expressed during that consultation. However, we have no idea when legislation will be possible because—even if everything goes smoothly and even with the best will in world—another legislative opportunity might not come along for quite a long while, as has  already been suggested, in the wake of what is an extremely large Home Office Bill. It surely makes sense for the Government to support this amendment, which, by enabling the adoption of pilot schemes in the short term, contributes to longer-term, evidence-based policy-making. It could make the world of difference to a number of prison leavers and their reintegration into society.
I hope therefore that the Minister will accept it or at least the principle of it and, as has been suggested, come back at Third Reading with the Government’s own amendment. If he does not, I fear it will send out a message to those working on the ground that, despite the consultation, the Government are not in fact really interested in evidence and how best to address speedily the problems, which they now acknowledge exist, created by Friday releases.

Baroness Jones of Moulsecoomb: My Lords, when I was a child and my parents stopped me doing something I would say “That’s not fair” and they would say “Well, life isn’t fair.” I would argue that this House is where we can make life fairer and obviously Friday releases are not fair. I congratulate the noble Lord, Lord Hodgson of Astley Abbotts, on persisting because this is an injustice, and it is a relatively small fix—I would hope.
I understand the point about consultation, but we all know that it is not fair. This amendment is a simple practical solution to the problem. The noble Lord, Lord Hodgson, said “What’s not to like?” There is something not to like: it gives Ministers discretion, whereas I think that they must implement these schemes, so I am less giving than the amendment.
If you want to be tough on crime and want that to be your legacy, you have to break the endless reoffending cycle and give people the best opportunity you possibly can to reintegrate with society. Friday releases are the polar opposite of that. They make life much harder for released prisoners before they have even got on their feet. It is obvious that this has to change.

Baroness Bakewell of Hardington Mandeville: My Lords, I raised the issue of Friday releases at Second Reading and in Committee. I thank the noble Lord, Lord Hodgson of Astley Abbotts, for pursuing this issue now we are on Report. I agree wholeheartedly with his remarks. I was encouraged in Committee by the number of noble Lords who supported this amendment.
Some prisoners are lucky in that their families keep in touch with them while they serve their sentences. This means that on release they have somewhere to go. Others find that their friends and family no longer wish to be associated with them. It is not for me to comment on this aspect. It is those without support mechanisms on the outside that this amendment seeks to assist.
I will not repeat the remarks I made in Committee but just say that even the most well-organised and enthusiastic local authority housing department will have difficulty finding a suitable place if someone turns up at 3 pm on a Friday afternoon looking for accommodation. A roof over their head may be found but it may not be suitable due to previous difficulties  such as drug and alcohol addiction. They may have been able to get themselves off their addiction during their time in prison but finding themselves in an overnight hostel on their release is not conducive to maintaining their willpower to remain clean and sober, or to their rehabilitation.
We are not suggesting that a definitive release date is suggested at the time of sentencing; that would be wholly inappropriate and unreasonable. But we are suggesting that prison governors should have discretion over the final days of the sentence so that the release date is not on a Friday, weekend or bank holiday for those without friends and family to support them, and that local authorities can be notified when someone is due to be released who may not have accommodation to go to. This seems to be a very reasonable way of ensuring that those released from prison have the best possible chance to keep their life on track and move forward positively. The prison strategy is welcome but waiting two years before tackling this issue of Friday, weekend or bank holiday releases is unacceptable.

Baroness Hamwee: My Lords, I do not disagree with a word of what has been said but regarding “What’s not to like?”, what I do not like is looking at the symptoms rather than the cause of this. I have understood over many years that the problem arises because there is no—I do not like the word—“upstream” work undertaken to support prisoners coming up for release. It needs a lot of preparation if the situation that my noble friend Lady Bakewell has just described is not to be encountered. Proper preparation for the release of prisoners is what requires attention. As I said, I do not disagree with a word of what has been said and I am happy to support the amendment, but I hope that what is proposed and what the Government are proposing will not be seen as a panacea because it is not; it is a much bigger problem than just Friday releases.

Earl Attlee: My Lords, I strongly support my noble friend Lord Hodgson of Astley Abbots. I agree with everything that noble Lords have said so far. I moved a similar amendment in Committee, which worked slightly differently from my noble friend’s amendment.
I am surprised that Ministers have not resolved this issue, especially as it was specifically referred to in the White Paper, which talked about a consultation. Who would be against it? What does the Minister think the cost is if a prisoner reoffends immediately on release and has to be sent to prison again? It costs £40,000 per annum so a six-month sentence could be £20,000, simply for releasing the prisoner on an inappropriate day.
I strongly support my noble friend. If he takes this to a Division, I will support him. I hope that my noble and learned friend the Minister seriously considers reflecting upon this issue and coming back at a later stage. There was a guffaw from the Front Bench.

A noble Lord: It was coughing.

Earl Attlee: Maybe the Minister was suggesting something. Seriously, I hope that my noble and learned friend agrees to reflect on this matter, thus avoiding a Division.

Lord German: My Lords, I too have signed this amendment. It amazes me that we have unanimity on the problem—a problem that may be solved in a number of different of ways but something which everyone thinks is a problem and should be solved—yet we are being asked to wait a number of years for that to happen. Talk to any Minister who has an interest in taking forward a new proposal, and the first thing that they will say is, “Ah, there is a problem with how much legislation we can get through in a year”, or whatever the space of time between the Queen’s visits.
Clearly, it is a difficult route for anyone to take through a Bill. I am sure that there would not be a Bill talking about the Friday release problem as a piece of primary legislation. It is bound to fall within another piece of legislation, but it is surprising that the Government support the principles upon which this amendment is created but cannot find the route for it to happen more swiftly. Let us remember the point that the noble Earl, Lord Attlee, just made, that the cost of not doing something here is immense.
If you stand outside a prison gate at a particular time on a particular week, you will often see people lined up at a bus stop with the same plastic bags containing their total belongings, their total life, and with their £76, if they have not already spent some of it on getting themselves some food. That is how they face the life in front of them. My noble friend Lady Hamwee was quite correct that the absolute certainty of getting this right is in the through-the-gate services which the Government must provide. It is one of the sad reflections that the gate is seen as a wall rather than as a place from where opportunities which commenced inside the prison can continue. I always relay to anyone who wonders about this that about 60% of the people who do my local recycling are on day release from prison and go back in the evening. The advantage is that they can earn a bit of money and eventually find their way back to employment more swiftly.
We know the difficulties here and it surprises me that the Government have not yet taken the view of the noble Lord, Lord Hodgson, who has sharpened his pencil and come up with the right answer. The right answer is that, if the Government want to take this forward in a bigger piece of legislation, in the interim you create the regulatory powers for the Minister to be able to give discretionary powers to the prison governor to identify those prisoners who are most at risk, and give them the opportunity to sort the problems out with local government. We are talking about a simple matter here.
As my noble friend Lady Bakewell of Hardington Mandeville said, local authorities have a major problem with housing. I experienced this with a couple of people coming out on a Friday. They went to the local housing office and were told there was nothing available. They wandered round from one local authority to another attempting to find a link between them, and I honestly do not know where they ended up, but it certainly was not in a place where their lives could continue and they could make a future for themselves.
The challenge in paragraphs 139 and 140 of the prisons strategy White Paper we were presented with is to get on with it—that is the Government’s intention.  I am sure the intention is not to hold back from it. This is a straightforward, simple resolution of the problem, which meets all the Government’s objectives. I support this amendment, and I hope the Minister can tell me the answer to the question asked by the noble Lord, Lord Hodgson: what is not to like?

Lord Ponsonby of Shulbrede: My Lords, my first interest in criminal justice came about 20 years ago, before I became a magistrate, when I was a trustee of the Wandsworth Prison visitors’ centre. Like all those centres, it was set up on the recommendation of Judge Stephen Tumim, and we dealt with the needs of the families of prisoners. It was then that I first came across this problem—it is not new—and the fact that it is very much the management of small issues that is of central importance for the prisoners and their families.
We owe a debt of thanks to the noble Lord, Lord Hodgson. He has indeed gone into the detail of this problem and come up with a highly practical way of resolving it—tonight, potentially. This House should take advantage of that opportunity. In one sense, I will be intrigued to hear what reasons the noble and learned Lord the Advocate-General for Scotland might give for not pursuing this, but this really is an opportunity. The noble Lord, Lord Hodgson, has addressed the three original points made in Committee in his new amendment, and I really encourage the noble and learned Lord to take advantage of this opportunity.

Lord Stewart of Dirleton: My Lords, this amendment seeks to reduce releases on a Friday, or on days before bank holidays, including releases of persons whose release falls on a non-working day, by creating a power for the Minister to establish a pilot scheme via secondary legislation that would grant prison governors the discretion to release earlier in the week, where that would be helpful for the prisoner’s reintegration into society.
I thank all noble Lords who have participated, particularly my noble friend Lord Hodgson of Astley Abbotts and the noble Baroness, Lady Lister, for their constructive and entirely commendable approach to this. As my noble friend put it, rather than simply rehearsing the arguments made at an earlier stage, they have gone away, considered the matter and sought to refine them in answer to the points made by my noble friend Lord Wolfson of Tredegar.
The question posed ultimately by the noble Lord, Lord German, rehearsing the one posed by my noble friend, was: what is not to like? Regrettably, I cannot answer that with “Nothing”, which I suspect was the answer being fished for. I will endeavour to explain why.
The noble Baroness, Lady Lister, highlighted the existence of a discretionary scheme in Scotland, in terms of the Prisoners (Control of Release) (Scotland) Act 2015. We have engaged with the Scottish Government and looked at research carried out by the Scottish Prison Service, and we have seen that the uptake of this discretionary scheme since 2015 is extremely low: only 20 prisoners in that period have been granted early release. I submit that that gives us some indication of the complexities attendant upon the point. It is not as though we have in the neighbouring jurisdiction a  solution to this matter which could be taken from the shelf and applied in England and Wales. We plan further engagement with the Scottish Government to look at the matter in more detail, and we will share the results of that engagement with the noble Baroness.

Baroness Lister of Burtersett: I am sorry to interrupt, but the Minister seems to be using this as an argument for not accepting the amendment. I have two points. First, there is no reason why the pilot should follow the example of the Scottish procedures, which, to me, seemed very bureaucratic when I read the helpful letter sent by the noble Lord, Lord Wolfson. Surely the whole point of pilots is to think about other ways of doing something before the Government actually legislate.
Secondly, yes, a very small number has been helped. We do not know why that is. Certainly, the letter I was sent tells us the what but not the why. But even a small number being helped is better than no one being helped in the period until such legislation can be passed.

Earl Attlee: My Lords, if the Scottish experience shows that it is no good, why on earth was it put in the White Paper?

Lord Stewart of Dirleton: The point is not simply to equiparate the example of Scotland; the point is to emphasise the complexities which underlie the matter. I will expand upon that in the rest of my answer.
We recognise that a high number of releases take place on a Friday. We accept that this can create challenges in some cases when it comes to prisoners accessing services, support in the community and finding accommodation, especially if they have multiple complex needs or a long way to travel to their home address.
I echo the observations from my noble friend Lord Hodgson of Astley Abbotts. As the House now appreciates, our recently published Prisons Strategy White Paper is allowing us to consult on the issue of Friday release from prison. In the course of that consultation, we will invite views on allowing prisoners who are at risk of reoffending to be discharged one or two days earlier, at the discretion of the governor of the relevant institution, where a Friday release can be demonstrated to be detrimental to an individual’s resettlement.
However, it is important that we allow time to understand the views of stakeholders, including operational colleagues, prison staff and the third sector. We submit that it would be premature to provide in statute for the pilot of a new release scheme, regardless of whether a sunset clause is attached—as the promulgators of the amendment have proposed—because, as mentioned, we are in the process of consulting on whether a legislative approach is necessary and, if so, what form such a scheme should take and how it should operate. We want to see the outcome of this consultation before we bring forward proposals. We will issue a response to the White Paper consultation in April 2022, and we will set out our plans on Friday releases moving forward from there.
I would call into question the appropriateness of using a sunset clause in relation to a pilot scheme. Sunset clauses are used only for temporary situations  where the provision is needed only for a specific period of time and is not designed to remain on the statute books—for example, in the recent coronavirus legislation. This, I submit, is not appropriate for a pilot, as its purpose is to test out a policy with a view to fully enacting that policy if the pilot is found to work. A sunset clause would not allow this, so that, if we decided the right approach was to pilot and it was effective, we would still be required to wait for the next legislative opportunity to be able to rule it out fully. Therefore, tying our hands to a pilot scheme would likely extend the timescales required to enact full rollout of a new release scheme, if that was decided to be the most appropriate approach.

Baroness Lister of Burtersett: Is the noble and learned Lord in effect saying it will be at least two years until there can be legislation, because this only runs for two years?

Lord Stewart of Dirleton: More than once, even today, this House has emphasised the importance of moving forward on the basis of evidence. The Government’s view is that it is appropriate to complete the consultation proceedings, interrogate them and decide how best to move forward.

Baroness Lister of Burtersett: My suggestion was to wait until the end of the consultation, which we are told will be next April, review the evidence, which surely should not take that long, and then run the pilot on the basis of what is found out in the consultation.

Baroness Jones of Moulsecoomb: When this Government want to bring in some quite nasty legislation, they can move very fast. I do not see why they could not bring in some rather nice legislation very fast as well.

Earl Attlee: Surely the Minister could introduce at Third Reading an order-making power that would last indefinitely.

Lord Stewart of Dirleton: My Lords, notwithstanding the fact that we are in the season of Advent, approaching Christmas, I am not prepared to argue on the basis of what is naughty and what is nice, or what is nasty and what is nice.

Baroness Jones of Moulsecoomb: I am sorry, but I do not understand what the Minister means.

Lord Stewart of Dirleton: What I mean simply is that the noble Baroness, doubtless with the best possible intention, is using simplistic language to categorise the Government’s legislative approach, which language I do not accept.
On the subject of the holistic approach—if I may put it like that—which was urged upon us by the noble Lord, Lord German, and the noble Baroness, Lady Hamwee, it is indeed important that we acknowledge the funding the Government are making available to provide just such an approach. Our December Prisons Strategy White Paper set out plans to reduce reoffending and protect the public. We will spend £200 million a year by 2024-25 to improve prison leavers’ access to  accommodation, employment support and substance misuse treatment, and for further measures for early intervention to tackle youth offending. We will make permanent the additional £155 million per year provided in the years 2019-20 for a new unified probation service to support rehabilitation and improve public protection, which will be a 15% increase on 2019-20 funding. This expands upon our Beating Crime Plan, which was published in July, setting out how we will cut crime and seek to bring criminals more swiftly to justice, reduce reoffending and protect the public. That included new commitments to recruit 1,000 prison leavers into the Civil Service by 2023, to expand our use of electronic monitoring and to trial the use of alcohol tags on prison leavers.
In addition, in January, a £50 million investment was made by the Ministry of Justice to enhance the department’s approved premises to provide temporary basic accommodation for prison leavers to keep them off the streets, and to test innovative new approaches to improve resettlement outcomes for prisoners before and after they were released. Then there is £20 million for a prison leavers’ project to test new ways to prepare offenders for life on the outside and ensure that they do not resume criminal lifestyles, and £80 million for the Department of Health and Social Care to expand drug treatment services in England to support prison leavers with substance misuse issues, divert offenders, make effective community sentences and reduce drug-related crime and deaths.
For the reasons I have outlined, including the overwhelming notion that these questions are not simplistic and we cannot simply move forward without the necessary evidence, as well as the assertion that an appropriate consultation is under way, I invite the noble Lord to withdraw his amendment.

Lord Hodgson of Astley Abbotts: My Lords, we have had an interesting debate. I thank all those who contributed to it. The noble Baroness, Lady Lister, is always sharp on these matters; she has been well up to her reputation tonight. As the noble Baroness, Lady Jones of Moulsecoomb, said, this is a small fix. As the noble Lord, Lord German, pointed out, it is not an expensive fix either; in fact, it may result in a net gain to the Government because, if we can stop some people reoffending, we will save more money than any cost—there is probably no cost here, or at least very little—and we could be better off as a result. I am grateful to those noble Lords and to the noble Baronesses, Lady Bakewell and Lady Hamwee. My noble friend Lord Attlee asked who is against the idea. I have not yet heard much about people who oppose it. I am grateful to the noble Lord, Lord Ponsonby, for his remarks and the fact that we are better than we were last night.
On my noble and learned friend the Minister’s comments, I do not think that the House buys the Scottish experiment as an example here. It is just not relevant. Nor do I buy the argument about the sunset clause being inappropriate; I think that is just the officials reaching for some reason to try to rubbish this amendment. I accept my noble friend’s point that we need time to understand and his commitment to a  consultation finishing by April 2022. Most interesting is the possibility that legislation might not be needed and there might be other ways of achieving what we all wish.
So we have a sort of balance here. On the one hand, an immediate opportunity is being missed and progress seems glacial, to put it no more roughly than that; on the other, we have an encouraging set of statements in paragraph 139 of the White Paper. My judgment as to whether to divide the House on this amendment and possibly damage the concept is that we would really be dividing the House on whether we want to try to create a bridge and find a way to start some work on this project immediately. On balance, the Government have offered us half a loaf. I think we should probably take that half a loaf tonight; I therefore seek leave to withdraw the amendment.
Amendment 82 withdrawn.
Amendments 82A and 82B not moved.

  
Schedule 13: Community and suspended sentence orders: special procedures relating to review and breach

Amendment 83

Lord Wolfson of Tredegar: Moved by Lord Wolfson of Tredegar
83: Schedule 13, page 243, line 36, leave out from “State” to end of line 37 and insert—“(6) Regulations under this section are subject to—(a) the negative resolution procedure, where under subsection (1)(b) the regulations specify a period, and(b) the affirmative resolution procedure, in any other case.””Member’s explanatory statementThis amendment requires regulations under new section 395A of the Sentencing Code to be subject to the affirmative resolution procedure if they apply indefinitely.
Amendment 83 agreed.

Baroness Fookes: The noble Baroness, Lady Harris, will take part remotely in the next debate.

Amendment 84

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
84: After Clause 132, insert the following new Clause—“CHAPTER 3ASSAULTS ON THOSE PROVIDING A PUBLIC SERVICE ETCAssaults on those providing a public service etcIn the Sentencing Act 2020, after section 68 insert—“68A Assaults on those providing a public service etc(1) This section applies where—(a) a court is considering the seriousness of an offence listed in subsection (3), and(b) the offence is not aggravated under section 67(2).(2) If the offence was committed against a person providing a public service, performing a public duty or providing services to the public, the court—(a) must treat that fact as an aggravating factor, and(b) must state in open court that the offence is so aggravated.   (3) The offences referred to in subsection (1) are—(a) an offence of common assault or battery, except where section 1 of the Assaults on Emergency Workers (Offences) Act 2018 applies;(b) an offence under any of the following provisions of the Offences against the Person Act 1861—(i) section 16 (threats to kill);(ii) section 18 (wounding with intent to cause grievous bodily harm);(iii) section 20 (malicious wounding);(iv) section 47 (assault occasioning actual bodily harm);(c) an inchoate offence in relation to any of the preceding offences.(4) In this section—(a) a reference to providing services to the public includes a reference to providing goods or facilities to the public;(b) a reference to the public includes a reference to a section of the public.(5) Nothing in this section prevents a court from treating the fact that an offence was committed against a person providing a public service, performing a public duty or providing services to the public as an aggravating factor in relation to offences not listed in subsection (3).(6) This section has effect in relation to a person who is convicted of the offence on or after the date on which section (Assaults on those providing a public service etc) of the Police, Crime, Sentencing and Courts Act 2021 comes into force.””Member’s explanatory statementThis amendment would add three new aggravating factors to the consolidated sentencing code, where the person attacked is (i) providing a public service, (ii) performing a public duty, or (iii) providing services, goods or facilities to the public or a section of the public.

Baroness Williams of Trafford: In moving the amendment in my name, I want also to address the related amendments tabled by the noble Lord, Lord Coaker, and my noble friend Lady Neville-Rolfe.
In truth, I do not believe that there is any great difference between noble Lords’ position and the Government’s. We all agree that it is entirely unacceptable that workers in public-facing roles should face verbal abuse and worse. That is why we have brought forward Amendment 84, to make it clear that such abuse will not be tolerated and to put in statute that the public-facing nature of the victim’s role will be an aggravating factor when it comes to sentencing.
I am grateful for the welcome the noble Lord, Lord Coaker, has given to the Government’s amendment. I know, too, that it has been welcomed by many of those who have campaigned on this important issue. I think they, rightly, regard this as a very welcome and significant step forward. In the debate in Committee, I gave your Lordships a firm commitment that the Government were in the process of considering, as a matter of urgency, how best to balance the many issues raised on this topic. Amendment 84 is the result of that consideration, and I would like to explain its purpose.
The amendment places in statute the aggravating factor applied by the courts in cases of assault where an offence is committed against those providing a public service, performing a public duty or providing a  service to the public. The aggravating factor is set out in the Sentencing Council’s sentencing guidelines. The provision applies to offences listed in the sentencing guidelines, which are also specified under Section 67(3) of the Sentencing Act 2020, with the addition of common assault and battery. This provides consistency with the statutory aggravating factor applied to assaults against emergency workers, as set out under Section 67 of the Sentencing Act 2020. This includes assault occasioning actual bodily harm, wounding with intent to cause grievous bodily harm, malicious wounding and threats to kill, as well as an inchoate offence in relation to any of these offences. These are the assault offences most likely to be experienced by front-line workers. Importantly, the provision also allows the court to apply the aggravating factor to any other offence, where the court considers this factor relevant.
If the offence was committed against a person providing a public service or performing a public duty, the court will have a statutory duty to treat that fact as an aggravating factor, and must state in open court that the offence is so aggravated. This amendment will reinforce in statute the seriousness with which the courts should treat these offences. It will send a very strong signal to the public that assaults of this kind are totally unacceptable. The Government want to ensure that all those who serve the public can feel protected from abuse when working.
This legislative change recognises the very strong public and parliamentary feeling about assaults against public-facing workers. I understand the argument that retail workers are asked to enforce the statutory age restrictions and that many see this as a reason for increased protection. We have also heard concerns from the retail sector about the risk of increased abuse fuelled by the mandatory requirement to wear face masks in shops. However, I consider it is important to give the same protection to all workers who face a similar risk of assault. For retail workers, it builds on the important work already under way by the National Retail Crime Steering Group to ensure that assaults are not seen as part of a retail worker’s job. The steering group brings together the Government, retailers, unions and trade associations, the Association of Police and Crime Commissioners and the police-led National Business Crime Centre.
I mentioned the work of the National Retail Crime Steering Group in Committee and I will not repeat it now. The work of the steering group will continue and it will play an important role in spreading the message about this change in the law, ensuring that retailers are reporting assaults to police and helping to ensure this is a deterrent to offenders. I can inform your Lordships that yesterday the Deputy Prime Minister, together with the Home Secretary and Attorney-General held a round table to discuss this important topic with CEOs and representatives from across the retail sector. So no one should be in any doubt as to the seriousness with which this issue is being treated at the highest levels of government.
I turn briefly to Amendment 100, tabled by the noble Lord, Lord Coaker. It seeks to create an offence of assaulting, threatening or abusing a person who is  performing their duties as a retail worker, and impose a maximum penalty of 12 months’ imprisonment, a fine or both. Given that the Government are creating a statutory aggravating factor, I hope that he will agree that that is not a necessary change.
It is important to remember that a person may be found guilty of common assault even if they have not been physically violent. Raising a fist to lead a victim to believe that they are going to be attacked, or pushing the victim, could constitute assault. The Government do not believe it is appropriate to provide for a higher maximum penalty in such cases. I understand that minor assaults and verbal abuse can have a significant toll on someone’s mental and emotional health, and I do not mean to diminish that fact. For more serious assaults, where physical violence has resulted in injury, actual bodily harm or grievous bodily harm can be charged. Those offences attract higher maximum penalties. The maximum penalty for assault occasioning actual bodily harm is five years’ imprisonment.
I turn, finally, to Amendment 104FB, tabled by my noble friend Lady Neville-Rolfe. It seeks to place a duty on the Government to conduct a review of, and report on, the adequacy of resources that police forces have available for the purposes of preventing or investigating assaults on retail workers. We all want to make sure that the statutory aggravating factor acts as a deterrent and results in a reduction in assaults against retail workers. As I have said, our amendment is part of the Government’s broader work with the retail sector and police to reduce these crimes. However, we will pay close attention to the impact this amendment has, as we do with all new legislation. In addition, the Sentencing Council reviews the sentencing guidelines on a regular basis, and the statutory aggravating factor will be considered as part of that process. We will continue to discuss the situation with the retail sector through the National Retail Crime Steering Group. The main indicator of whether incidents have reduced is the experience of retail workers, whether they feel safer at work and whether they experience a reduction in incidents.
Ultimately, the allocation of police officers is a matter for individual chief constables and the police and crime commissioners to whom they are answerable. It is the Government’s duty to ensure that the police have sufficient resources and there can be no doubt that the Government are doing what is required in that space. As noble Lords will know, we are committed to an additional 20,000 police officers in England and Wales, and we are over half way there.
I am grateful to all those who have worked with the Government on this, and I hope they will now see that their efforts have been worth while. I see the noble Lord, Lord Kennedy, on the Back Bench. I pay particular tribute to him. He has not let this one go over a number of years. I also hope that, in the light of the government amendment and having heard my comments, the noble Lord, Lord Coaker, and my noble friend Lady Neville-Rolfe will be content not to move their amendments. I note that the noble Lord, Lord Dholakia, also has an amendment in this group. I look forward to hearing what he has to say and I will respond when winding up. I beg to move.

Lord Kennedy of Southwark: My Lords, I speak in support of the amendment. I thank the noble Baroness for bringing it forward. As she said, we met many years ago in her office upstairs, with representatives of the trade union USDAW to discuss these issues. We rightly pursued this point.
Many years ago, when I was about 14, I became a shop worker; I started working in a shop on the Walworth Road. It got me talking, and I have not stopped talking since. Meeting people gave me confidence. Equally, over the many years I worked there, there were often incidents when you were abused by customers. In those days, when someone paid by credit card you had to phone up if you were a bit suspicious. You had people legging it for the bus—there were all sorts of incidents. There were always issues. You would sometimes be abused by people who were seeking to do wrong: to shoplift or cause other problems. So I have first-hand experience of some of the problems that shop workers have experienced.
I was a member of USDAW. It is a fantastic trade union. It understands its members and the issues they have, and puts them forward persuasively to government and local authorities. It always did that. One of its long-running campaigns is called Freedom from Fear. You have the right to go to work, do your job, be paid for your work and not live in fear. Many shop workers have that issue; they are in fear of what will happen to them there. During the pandemic we have all seen some appalling stories of how shop workers have been treated. USDAW has been really good in standing up to that.
I pay tribute to John Hannett, the former general secretary of USDAW, to Paddy Lillis, the present general secretary, to the staff and to the many hundreds of thousands of USDAW members who have not let this issue rest. I also pay tribute to some really good employers, the supermarkets that understand the problems their staff have. The Co-op, Tesco and many others have stood up and backed the union and its members. This amendment has also been led by the work of Daniel Johnson MSP in Scotland. He got his Private Member’s Bill through last year.
What is really good about this amendment is how wide it is; it covers anybody delivering a service to the public. In some senses it is wider than my noble friend Lord Coaker’s amendment, which I think is great, and a better amendment. It is really good and we should do it.
I am really pleased. We all hear many stories about what goes on. My good friend Elaine Dean, the vice-president of the Central England Co-op, will tell you about some of the appalling incidents it has had with its members and with staff over the pandemic. I genuinely thank the Minister. She listened, understood and went back to the department and argued in support of the campaign, and we have come out with a good amendment. I thank her very much for that.

Baroness Garden of Frognal: My Lords, I call the noble Baroness, Lady Harris of Richmond, who will speak remotely.

Baroness Harris of Richmond: My Lords, I declare an interest in that my son works in retail. I have added my name to that of my noble friend  Lord Dholakia on Amendment 114 in this group. This threshold needs removing from the Anti-social Behaviour Act, and here we have the perfect opportunity to do it.
Retailers keep UK plc going. They provide us with the goods we need to live our lives, no matter what. They are key workers, but they do not have the key support they need. It is shocking that retailers lose £770 million a year to retail crime. Between the 307,000 shops, this comes to an average of almost £2,500 per shop, per year. Noble Lords may say that this amount of money could easily be a sunk cost for our supermarkets —but not for our independent shops. Assuming an 8% margin, retailers such as those belonging to the British Independent Retailers Association would have to make sales of almost £32,000 for a small shop just to make back what they have lost to these criminals. This is while the level of retail crime is still increasing: by 19.1% between 2014 and 2018, compared with 4.96% between 2010 and 2014, before the Anti-social Behaviour, Crime and Policing Act was given Royal Assent.
As only one in 20 of all shoplifting offences are now prosecuted, it cannot be a shock that such odds are likely to give any wily criminal the feeling that their crime does not matter and that they can do what they want with little or no consequence. Is it any wonder that retailers feel that, while they are being punished, perpetrators of retail crime are not? This needs to change. Retailers need to feel that they have the Government’s support and that they are not the ones being punished when someone steals from their shop. I therefore support this amendment from my noble friend Lord Dholakia.

Baroness Neville-Rolfe: My Lords, I support the noble Lords, Lord Coaker and Lord Kennedy. I shall speak to my Amendment 104FB, which would require the Secretary of State a year hence to carry out a review of the adequacy of police resources devoted to assaults on retail workers. Like the noble Lord, Lord Kennedy, I always had very good relations with USDAW in my many years as—I suppose you could say “a retail boss”—an executive at Tesco.
I start with an enormous thank you to my noble friend the Minister for arranging a meeting with the retail industry bodies, USDAW and several parliamentarians, including myself, with a star cast of the Deputy Prime Minister, the Home Secretary and the Attorney-General. We all felt, for the first time, that we were having a high-level and constructive discussion on what could be done across the board about violence and abuse of retail staff. That is against a background of 455 security incidents a day, according to the BRC, and very few prosecutions.
The police response to these incidents has historically been inadequate. We need to ensure that the police have the right resources and can put a higher priority on prosecuting these retail crimes. This is particularly important given the role of retail workers in enforcing Covid restrictions such as masks, but also in addressing knife crime and shoplifting, as the noble Baroness, Lady Harris, explained, which in my experience is often caused by the need for individuals to get drugs, so it feeds into drug crime as well.
At the Zoom meeting, the industry welcomed the fact that the Government had recognised the seriousness of the issue and tabled Amendment 84, which we have heard about from my noble friend. This would mean that the worst offenders could see tougher sentences. The industry also very much welcomed the new relevant instructions from the Home Secretary and from the Attorney-General.
However, it is important to ensure that this new measure has the desired effect in terms of police effort. I believe there should be a regular review to monitor its effectiveness, hence my amendment proposing a review in a year’s time, which I hope the Minister will feel able to support.

Lord Dholakia: My Lords, Amendment 114 is in my name. We discussed it in Committee and I have studied at great length the response from the Minister. Unfortunately, it has not satisfied many retail traders, whose income depends on crime being prevented. The consequences for shop insurance and livelihoods depend on proper action on low-level crimes.
In 2014, a change in the law meant that shop theft valued at less than £200 would not be charged through the courts but, rather, would be tried summarily. The reasoning behind that was to make the prosecution of cases more efficient. The Government may claim that that has happened, but that is only because the courts no longer see the problem and no longer see that it takes an average of 30 convictions for this type of criminal to go to jail. The burden has fallen on small retailers, who now see savvy criminals exploiting the situation to steal with virtual impunity.
The cost of retail crime to retailers is huge. My noble friend Lady Harris mentioned the cost, according to figures supplied to us by the British Retail Consortium, to those such as members of the British Independent Retailers Association. Money that could otherwise be used to improve facilities, raise wages and improve the offers to consumers instead goes straight into the pockets of criminals.
That is not a trend that is in reverse. Retail crimes are rising year on year, with an overall increase of 19.1% between 2014 and 2018, compared with an increase of 4.96% between 2010 and 2014 before this threshold was in place. This is reflected on the ground too. In the most recent crime report taken across members of the British Independent Retailers Association, two-thirds of BIRA members reported that most crimes against their business were valued at less than £200 and that there has been a disproportionate increase in this type of crime since the threshold was put in place.
Of course, the reduction in resources available to police forces undoubtedly poses challenges. It cannot be good when John Apter, chairman of the Police Federation, acknowledges that shoplifting is
“increasingly likely not to be attended by officers”,
and forces such as Thames Valley Police inform local shops that they will not send out officers to deal with shoplifters who steal less than £100-worth of goods. How can this foster trust and build confidence? It cannot; it means that many businesses feel as if they  are alone in this fight—a fight that is a risk to their very business. To put it into context, a small business owner working on a typical margin of 8% will need to sell £2,500-worth of goods to make back £200 of stolen goods, with independent retailers such as John Barlow in Nottingham reporting that police
“are basically telling thieves, ‘Help yourselves’. Of course, there are more serious crimes police need to solve but you can’t just give thieves a licence to steal.”
The Government are aware that there is a problem and it is appreciated by retailers that the Minister in the Home Office talked to chief police officers in July 2020 to say that retail crime should not be tolerated. However, that is not enough. Retail crime is going up; it is just the number of convictions going down. Just one in 20 of all shoplifting offences are now prosecuted, while the number of cautions for such thefts—of all values—has fallen from 40,000 to just 5,000 in a decade, according to figures obtained by a freedom of information request.
The Government are putting the burden of this crime on the retailer, not the court system, to claim efficiency. But giving a criminal the equivalent of parking ticket will not make them stop. It just means that the only person who sees the punishment is the postman delivering the fine. The criminal themselves will see this as a minor inconvenience as opposed to a reason to stop.
I urge the Government to reconsider their position and use this perfect opportunity to remove this clause and show solidarity with our retailers. Perhaps the Minister would like to meet a delegation of representatives of small traders. I look forward to her response.

Baroness Bennett of Manor Castle: My Lords, I signed and spoke to related amendments in Committee. I also take a perhaps rare opportunity to congratulate the Minister on a comprehensive and fair Amendment 84 that really addresses the concerns of workers who are particularly low paid and insufficiently respected.
Like the noble Lord, Lord Kennedy, I note that this demonstrates a hashtag I use often: #campaigningworks. USDAW has done so much work on this over so many years, as has the Institute of Customer Service and its Service with Respect campaign.
I want to ask the Minister two detailed questions. Does this also apply to people providing services over the phone or remotely? I am thinking particularly of Section 16 and threats to kill. It would appear that would also potentially be covered under this. If the Minister wants to write to me later that is fine. I also want to confirm—I think I know the answer but it is worth confirming for the record—that this is an offence committed against a person providing a public service. Will volunteers also be covered under these provisions? Many volunteers provide all kinds of public services and I think that is an important issue.

Lord Coaker: My Lords, it is a great privilege to speak in this debate. I declare an interest as a member of USDAW and the Co-operative Party—I wanted to make sure that I did not forget to do that.
I know that it is quite late in the evening, but it is worth us spending a few minutes on something that impacts on millions of people across this country, in  every single area of this country, from the smallest and most impoverished communities to the wealthiest. This directly impacts on all of them.
The Minister is quite right in saying that her amendment supersedes mine, and I welcome government Amendment 84. The noble Baroness, Lady Neville-Rolfe, will speak to her amendment, and we have heard from the noble Lord, Lord Dholakia. On my amendment, I thank my noble friend Lord Kennedy for pointing out that it is the first time in my life that my comrade has praised the Conservatives for tabling a better amendment than me. On this occasion, he is absolutely right; it is a far superior amendment to the one that I tabled. It is a great tribute to the Minister, who has listened.
We often say that Ministers should listen and need to take account of something. This Minister has actually acted on that and changed the legislation—she has talked to her civil servants. I say this as an example to other Ministers in both Houses: sometimes a Minister has to stand up and say, “This is what the public, the House and the Chamber demands, and this is what common sense says—so change the law and do what people think is right”. Millions of people across the country will see this as something that has taken years of campaigning by people such as the noble Baroness, Lady Neville-Rolfe, my noble friend Lord Kennedy and others. People on all sides have demanded this change.
One thing that we need to emphasise in the amendment that the noble Baroness has put before us is really important. Rightly, much of the emphasis has been on retail workers, and I want to emphasise some of the facts. We have emphasised the fact that the trade union and large retailers of all sorts have come together. But this amendment talks about assaults on those providing a public service; that is a huge expansion of the categories of worker that can be taken into account by those in court, using the aggravating factors before us. That is something that we should reflect on as a Chamber; it is a key change and a massive extension of the number of those workers who will be protected from abuse.
As we sit here in this Chamber at 9.23 pm, there will be people in the remotest part of Cornwall in a village shop, someone collecting tickets on a railway station in a different part of the country—a rural part of Northumberland, for example. There may be somebody on Walworth Road or in Manchester, who will at this time be facing the sort of abuse that we all deplore. We can say to those people that not only have we deplored and understand how horrific it is, we also recognise the responsibility that we have with the other place in legislating to do something about it.
The Minister was right to say that this sends a signal. Of course it does, and that is really important—but it also gives the magistrates and courts the power to say to people who think that they can act with impunity, whether it is in a village shop or a railway station or on a bus, “We are going to use that as an aggravating factor and you are going to receive a stiffer punishment than you otherwise would have done.” That should give people pause.
The noble Lord, Lord Dholakia, was quite right in some of the points he made. However, the important thing for us now—the Minister will know this, and I think the noble Baronesses, Lady Neville-Rolfe and  Lady Bennett mentioned it—is how we ensure that we make this legislation work. How do we give the confidence to somebody, who is often on their own and sometimes not in the first flush of youth, to come forward and report that crime to the police so that those people get taken to court? Often those people will be their own witness. They have to go to the police to report that crime and say, “I’ll go to court” or whatever the process will be. As we move forward with this incredibly welcome piece of legislation, we need to understand how we build that confidence among people. That was one of the things that members of various trade unions as well as USDAW have raised with me. It is about building people’s confidence so that they come forward, are their own witness and report the crime. We must get to a point when the new powers that courts have can be used, because we understand the intimidation.
The Government could do with some good publicity at the moment. I would be ringing this out across the country, not to benefit a Conservative Government but to show that the Government of our country, responding to people across the Chamber, have turned around and said, “We are changing the law and we want people to be aware of the law.” Not only do we want those who act in a criminal way to understand that there is now a punishment that courts can use to deal with them, but, as I say, we want to give confidence to people to come forward.
Many other things could be said but it is important for all of us who have come together as we have to congratulate the noble Baroness, Lady Williams, and to say a big thank you to her again for the changes she and her colleagues have made and the way in which she put that meeting together. This is a strengthening of the law which reflects the seriousness with which the state views these assaults. We will not tolerate it, and the law is saying to people across this country, “We’re going to act, because these people deserve better protection than they’ve had so far.”

Baroness Williams of Trafford: My Lords, in my time as a Minister I have had a to-do list in my mind, and included on it was tackling assaults on retail workers and the historic disregards. I am very pleased that in the Bill we will be able to do both, so tonight is a very good night.
I thank the noble Lord, Lord Dholakia, for bringing back his amendment and for his obvious commitment to support business owners in areas affected by high crime rates, in particular business owners from diverse communities. In Committee my noble friend Lord Sharpe made it clear that shoplifting offences involving the theft of goods of up to £200 can and should be dealt with by the police as a criminal offence. Section 176 has no bearing on the ability of the Crown Prosecution Service to prosecute a person for theft from a shop or on the court’s powers to punish offenders.
My noble friend also spoke about a survey conducted by the National Business Crime Centre to ask police forces about the reporting of retail crime. I will repeat what he said, because it is important. He stated that the survey asked
“whether forces had a policy where the monetary value of shop theft determined whether the crime was investigated. Thirty-four out of 43 forces responded … the survey found that no  Official Report, 3/11/21; col. 1272.]
I have heard what the noble Lord, Lord Dholakia, said today and I understand the concerns about the prevalence of shop theft. I understand in particular the concerns from owners of small businesses, such as small independent shops operating in areas with high crime rates. If the noble Lord is amenable, I would like to meet further with him to discuss it.
I thank the noble Lords, Lord Coaker and Lord Kennedy, for their fulsome support of the government amendment and for repeating the point that we are sending a very strong signal about how seriously we treat this issue. There is more that we are doing. As my noble friend Lady Neville-Rolfe said, prolific shoplifters often have a drug or alcohol dependency, and shoplifting funds this addiction. We need to have the right interventions in place, and the Government’s 10-year drugs strategy, published last week, sets out the Government’s intention to invest in substance misuse treatment, including clear referral pathways for offenders into treatment to reduce the risk of reoffending and help reduce acquisitive crime, including shop theft.
It is essential that everyone plays their part, which includes the need for retailers to work with their local neighbourhood policing team. Many areas have a business crime reduction partnership to bring together businesses and their local neighbourhood policing team to tackle local crime priorities. Business crime reduction partnerships play an important role in sharing information between businesses and police to identify and tackle prolific shoplifters. In turn, the Home Office is also working with the National Business Crime Centre and the National Association of Business Crime Reduction Partnerships to ensure that effective partnership working takes place. The National Retail Crime Steering Group, which I have spoken about previously, has published best practice on sharing data about lower-level incidents and crime that may not require an immediate police response but build a picture of the level of crime in an area and help to establish an appropriate longer-term solution. This information is hosted on the British Retail Consortium website.
My noble friend Lady Neville-Rolfe asked about reviewing the legislation. We will pay close attention to the impact that this amendment has, as we do with all new legislation, as I said before. The Sentencing Council reviews the sentencing guidelines on a regular basis. As I said earlier, the main indicator of whether incidents have reduced is the experience of retail workers and whether they feel safer at work. We want to see a real shift in the working culture so that abuse is not part of the job.
The noble Baroness, Lady Bennett, asked whether the amendment could cover verbal threats over the phone, and it could well do. It could also cover volunteers, depending on the circumstances; for example, volunteers working in shops.
I think I have persuaded the noble Lord that repealing Section 176 of the Anti-social Behaviour, Crime and Policing Act is not the way to reduce low-value shop theft, but we will have those conversations later.
It is very nice when, occasionally, you get plaudits from all around the House, so I am going to bask in it for one second and thank noble Lords—it will not happen often.

Baroness Neville-Rolfe: Before my noble friend sits down, perhaps she could get one final plaudit for her terrific performance in this area by agreeing that the Home Office, and indeed the other departments—the Ministry of Justice and the Attorney General’s Office—will look with favour on a discussion with the retail and indeed the wider sector on the impact of these changes, say, in a year’s time. I think she rightly said that what matters is the experience of retail and other workers in the light of the new law. I fear perhaps that not much progress might be made, so if we find that we need to review this in a year’s time, I hope she will look positively at that.

Baroness Williams of Trafford: I am more than happy to do that. In fact, I think it would be a very good idea to meet up, because the discussions have been positive and fruitful over the last period. So, yes, I am very happy to do that in support of my noble friend.
I welcome the support for the government amendment, as I have said. I think it makes a real, significant step forward. Let us keep it monitored, as my noble friend said.

Lord Kennedy of Southwark: I am genuinely very grateful to the Minister. I think this is a good example for all Members of the House that when you have an issue, you should just keep raising it, because this House can maybe act in ways that the other place sometimes cannot. Sometimes people get into their trenches there, but we can do it a bit differently here. Certainly, by raising issues persistently, and with the Minister listening and bringing people together, we can actually get things right. I think that is one of the great things about this House.

Baroness Williams of Trafford: The noble Lord is absolutely right. I think we will call it the “Kennedy approach”, but then we have had the “Cashman approach” as well—and they have both worked. We have the bandwidth to look at things in a different way from the other place. On that note, I commend the amendment to the House.

Baroness Bennett of Manor Castle: Before the Minister sits down, I will just bounce off what the noble Baroness, Lady Neville-Rolfe, said. The Government are offering more protection to retail workers here. Does the Minister agree that this does not take responsibility off employers to make sure that they are also doing all they can to provide a safer working environment for their staff?

Baroness Williams of Trafford: I can agree, yes.
Amendment 84 agreed.

Amendment 85

The Lord Bishop of Gloucester: Moved by The Lord Bishop of Gloucester
85: After Clause 132, insert the following new Clause—“Pre-sentence report requirements  (1) Section 30 of the Sentencing Act 2020 is amended as follows.(2) After subsection (3) insert—“(3A) A court must make inquiries to establish whether the offender is a primary carer for a child.(3B) If the court establishes that the offender is a primary carer for a child, unless there are exceptional circumstances before sentencing the offender the court must obtain a pre-sentence report containing information to enable the court to make an assessment of the impact of a custodial sentence on the child.”(3) After subsection (4) insert—“(5) In this section—(a) “child” means a person under the age of 18; and(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.””Member’s explanatory statementThis Clause amends section 30 of the Sentencing Act 2020 to make clear the requirement for a sentencing judge to have a copy of a pre-sentence report, considering the impact of a custodial sentence on the dependent child, when sentencing a primary carer of a child.

Bishop of Gloucester: My Lords, in moving Amendment 85 I will speak also to the other amendments in my name in the group. I am very grateful for the support of the noble Lords, Lord Ponsonby and Lord German. I am very grateful for the briefing and expertise provided to me by the organisation Women in Prison and I declare my interest as Anglican Bishop for Her Majesty’s Prisons.
In Committee I highlighted the injustice of punishing a child for their parent’s mistakes and I will not go over that ground again. But I want to frame this discussion by reminding us that when a parent goes to prison it can affect every area of a child’s life, from losing their familiar home and school through to reduced educational achievement and mental and physical well-being. The consequences can last a lifetime.
It is also important to highlight again that the imprisonment of a household member is one of 10 adverse childhood experiences known to have a significant negative impact on a child’s long-term well-being, including life expectancy. It raises the possibility of children being imprisoned themselves at some point in their lives. However, I want to be very clear on that point that there is nothing genetic about offending. If a child is failed by the system, left disenfranchised and excluded, we have failed them. We must do all we can to ensure that children can reach their potential.
In response to the Government’s counter-arguments in Committee I wish to make three points, knowing that other noble Lords will provide more detail. First, on pre-sentence reports, the Minister said in Committee that
“a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers”.—[Official Report, 1/11/21; col. 1041.]
However, as I understand it, the sentencer does not have to accede to that request and a PSR will be obtained only if the sentencer requests it. Making it mandatory for probation to request a PSR still does not create an obligation on a sentencer to request one.
Over the past decade there has been a decline in PSR volumes and a shift from written to oral PSRs. There are three delivery methods of pre-sentence reports:  oral reports and fast delivery reports are both usually delivered on the same day as the court hearing by the court duty probation officer, while standard delivery reports require more detail and are delivered after an adjournment of up to 15 days to obtain additional information.
A research and analysis bulletin from HM Inspectorate of Probation in 2020 found that the recent shift towards oral PSRs, with a focus on speed and timeliness, has impacted on the quality of information provided to courts. In 2018-2019 58% of reports were orally delivered rather than written, twice as many as in 2012-2013, while 39% were fast delivery reports and only 3% were standard delivery reports. I am encouraged that between March and May 2021 a pilot commenced between the Ministry of Justice, HMCTS and the probation service of an alternative delivery model to increase the number of cases receiving pre-sentence reports from 53% to 75%. I note that women are identified as one of three primary cohorts for higher-quality reports on the day.
However, I believe the pilot focuses on delivering written fast delivery reports for women produced on the same day rather than full standard pre-sentence reports, which would enable more time for information to be sought in relation to children and the impact of a sentence on them. It is true that some sentencers request pre-sentence reports when sentencing a primary carer, but not all do. The point of this amendment is to ensure that judges and magistrates have the full picture when sentencing.
I come to sentencing guidelines. Provided by the Sentencing Council to judges and magistrates, they already acknowledge the devastating impact of parental imprisonment. In Committee, the Minister said:
“Courts are required by law to follow those guidelines, and the guidelines specify that being a ‘Sole or primary carer for dependent relatives’ is a mitigating factor when sentencing an offender.”—[Official Report, 1/11/21; col. 1039.]
It is my understanding that being a sole or primary carer can be a mitigating factor, but it is up to the judge to decide whether they consider it as such, so it is left to the sentencer’s discretion whether they consider it a factor which should change the sentence. It therefore cannot be said that the guidelines create an obligation on sentencers to consider dependent children.
On the ground, there is evidence that these guidelines are not always being consistently and robustly applied. Dr Shona Minson has carried out research into the application of the guidelines being applied in sentencing. She spoke with 20 Crown Court judges and asked:
“What kind of personal mitigation most often influences you in sentencing decisions?”
Half of the judges interviewed thought of family dependants. Half of them did not. So it seems that judges do not take a consistent view on the relevance of dependants as a factor in mitigation. According to Dr Minson’s research, judicial understanding of the guidelines in case law, which set out the duties of the court in relation to considering dependants in sentencing, is limited and, at times, incorrect.
In Committee, the Minister said that the judiciary “get it” when it comes to sentencing mothers. I think that this assertion needs testing. In fact, we simply do not know the number of women in prison who are  primary carers, so it is no more than speculation to say that judges “get it” on this issue. If the Minister is basing his assertion on the decline in the number of women in prison, the latest annual prison population projections explain that this recent decline
“is likely driven by a drop in prosecutions and sentencing as a result of the COVID-19 pandemic … lockdowns have affected the mix of cases brought to criminal courts and restricted the courts’ ability to process cases”.
Between 2013 and 2019, the women’s prison population remained relatively consistent. Indeed, the fact that 500 new women’s places are being built is not a sign that women’s prison places are projected to fall.
Finally, I come to the importance of data. I was really encouraged to read in the recently published White Paper on the prisons strategy that the Government intend to
“begin recording data on prisoners’ family circumstances and caring responsibilities, and conduct analysis to better understand the circumstances and needs of offenders.”
I applaud and welcome this as a step in the right direction. Without data, we are making policy in the dark. I should welcome confirmation from the Minister on the timeline for this. Amendment 88 in this group asks that this data be collected at sentencing, disaggregated by gender, ethnicity, sentence and offender type, and made publicly available. I should welcome further discussions with the Minister to ensure that we are collecting the right type of information.
In conclusion, as a Christian, I believe that each precious and unique child is made in the image of God and must be treated with dignity and respect. I know from the work of charities such as Children Heard and Seen the devastating impact that losing a parent to prison can have on a child of any age. Research from the Prison Reform Trust found that children with a parent in prison felt invisible. We must consider the rights of children to a family life. At the heart of these amendments is not a plea never to send a mother—or, indeed, a father—to prison. Instead, I hope that we might work towards preventing long-term harm for children whose parents have done wrong but for whom a community penalty is more appropriate for both the offender and the children. I look forward to hearing what the Minister has to say. I will be listening carefully but, at this point, I flag that I am minded to test the opinion of the House on the amendment. I beg to move.

Lord Bradley: My Lords, I rise to speak—briefly at this hour—to this group of amendments and declare my interest in the register, particularly as a trustee and vice-chair of the Prison Reform Trust.
I strongly support these amendments, which have been so effectively moved by the right reverend Prelate the Bishop of Gloucester. I support everything she said. It is essential that the courts fully take into account primary caring responsibilities, especially for a child, in their sentencing decisions and recognise the consequences of not doing so on the impact on the child and the family.
I will not repeat all the arguments that I made in Committee, but, as we have heard, the key document before the courts at sentencing is the pre-sentence  report. However, as the charity Women in Prison has pointed out in its supplementary evidence to the Justice Select Committee, the information from Her Majesty’s Prison and Probation Service shows a real decline in proper pre-sentence reports over the past decade. In 2010, for example, pre-sentence reports were available for 62% of all court disposals, reducing to only 53% in 2018. Almost half of the sentences that result in a custodial or community order have no new pre-sentence report prepared to inform the sentence. We have heard—and I support—the improvements that are being looked at in this area but that is the current situation and it must be urgently addressed.
Further, there is a lack of data to disaggregate those figures according to gender. In answer to a Parliamentary Question in 2019, the Government could not say how many women who are likely to be the primary carer had been imprisoned without a pre-sentence report. This remains totally unacceptable. Even where a pre-sentence report is available, it does not routinely provide information to the court about caring responsibilities. As I said in Committee, and it is worth repeating, in January 2021 I asked a Parliamentary Written Question about how many children in each of the past five years were taken into care because their mother was given a custodial sentence. Extraordinarily, the Answer was that the data requested was not something that Her Majesty’s Prison and Probation Service recorded. I am pleased to hear that it is now addressing that issue, but I again ask the Minister with what action and over what timescale will this matter be addressed.
Or course, prisons collect information on caring responsibility, but at the point of prison reception. That is simply too late. The damage to the child and the family has been done, especially for those sentenced to a short prison sentence. We can and must do better. The pre-sentence report must include information about primary care responsibility. Data from various sources must be brought together. They include: the local authority, which currently has responsibility for safeguarding children; the health service, because of the impact on the family and individual; and particularly liaison and diversion services. There must be agreed information-sharing protocols.
We must invest further in technology to ensure that information can flow seamlessly across the criminal justice pathway so that there are no barriers to the information being available to the judiciary in a timely way, ideally at first court appearance. Delaying getting that information can mean that the woman in the example I am giving is put on remand while that information is collected. Again, damage to the child and the family flows from that decision. We must try to reduce the number of people put on remand who have primary carer responsibilities. These amendments would underpin this ambition, and will be a significant step forward in limiting the damage, both social and economic, of imposing a custodial sentence—often a short one—which has the impact on the family, instead of administering a robust community sentence.
Ensuring a clear understanding of primary carer responsibilities will mitigate against the often-irreversible consequences for children of being taken into care, and the primary carer losing their home and employment.  I am sure that the Government can see the overriding benefits of this, and will, like me, support these amendments tonight.

Baroness Bennett of Manor Castle: My Lords, I rise briefly to offer Green support to the right reverend Prelate, who so powerfully introduced these amendments. Indeed, the stress on the need for information is absolutely crucial.
I want to make a very specific point on how the damage of a prison sentence can be magnified where a prisoner who has primary carer responsibilities—most likely a woman—is then subject to recall to prison for a further time. I am drawing here on a report from the Centre for Women’s Justice, which notes:
“The Transforming Rehabilitation Act 2014 provided that all offenders who had served prison sentences of more than one day should be compelled to attend probation supervision for one year. They can be recalled to prison if probation staff find they have failed to comply satisfactorily. Women on licence recall now make up 8% of women in custody.”
That is a truly shocking and surprising figure. This reports notes that the main reason for recall is
“failure to keep in touch with the supervising officer”,
rather than some more serious offence.
A report by the Prison Reform Trust noted that, of 24 women recalled, three had been pregnant at the time of recall. One said that the reason why she failed to attend an appointment was due to a hospital visit for a pregnancy scan. She was then separated from her other children and put back into prison, with further massive disruption obviously resulting. Will the Minister look into this situation? This is part of the sentencing guidelines, but there is a particular issue here in respect of probation and the way in which women—or anyone with caring responsibilities—are treated in this situation.

Lord German: My Lords, I too pay tribute to the right reverend Prelate for her dedicated work in this matter. We could see her laser-like approach to looking at each of the issues facing this group of people, which are clearly addressed in these amendments. These amendments cover a range of issues, but I would like to take up the points already made by the right reverend Prelate, the noble Lord, Lord Bradley, and the noble Baroness, Lady Bennett, about data.
It is interesting that on 6 December, the Minister, in replying to the right reverend Prelate the Bishop of Gloucester, said:
“We do not hold current figures on how many women in prison aged (1) 18 to 24 or (2) 25 years or older have dependent children.”
I appreciate that there is attention being given to this for the future, but I can only echo the words that, if you do not know, then you are going to be making policy in the dark, as the right reverend Prelate said right at the beginning.
However, figures have been produced by the Howard League. I think it gained these figures by doing an analysis of what it could glean from talking to prison governors and staff. We know that women make up 5% of the prison population but are more likely than male prisoners to be serving short sentences for non-violent offences. The majority of those women experienced childhood abuse, and many are victims of domestic abuse, so they are more likely than male prisoners to report poor mental health and problems with alcohol and drugs.
Here is the crucial figure: the Howard League says that two-thirds of female prisoners are mothers of dependent children, and that at least a third of these are single parents. That means around 17,000 children are separated from their mothers by imprisonment each year, and the vast majority of them are moved out of their homes as a result. I am sure that every noble Lord here can understand the strong detrimental effect that has on their development and well-being. The harsh impact on the welfare of their mothers goes far beyond the impact of the imprisonment itself.
There was a review of women in prison in 2006-07 by the noble Baroness, Lady Corston. One of the outcomes of that was women’s centres, which have so far proved very effective at keeping women out of prison. However, there are insufficient numbers of them, and they are insufficiently well resourced. We need to enlarge that figure considerably.
The important feature here is the future. We understand that the Government now intend to collect the right data, so that we can inform our policy-making. The issue of recall, which the noble Baroness, Lady Bennett, talked about just now, is a specific issue and one that has a double effect, of course, because sometimes the reason for being recalled is very slender. The children’s lives are then doubly affected.
Finally, I go back to the number of children. A substantial number of children in this country are moved out of their homes and lack the family basis on which they are being brought up. We must recognise that this specific factor—all the other factors range with it—affects the future of those children. If nothing else, this series of amendments must put right, full and square, that the welfare of the child is fundamental in everything we do. There is an awful lot that we need to do, and these amendments reflect that.

Baroness Hamwee: My Lords, one of the children to whom my noble friend refers gave evidence to the Joint Committee on Human Rights when I was a member and we were looking at the impacts on children of imprisonment of mothers in particular—and fathers too. That child had been 15, I think, and found herself going from literally dancing around the living room to music when her mother was in court to finding herself responsible, as she saw it, for herself and her younger brother. The impact is devastating. I do not want to spend any longer on this at this time of night, but I thank the people who give evidence to committees such as the JCHR and the all-party groups about this sort of situation. It is very vivid and helps us to understand better than we can from words on paper just how devastating this situation can be.

Lord Ponsonby of Shulbrede: My Lords, I have also put my name to these amendments, so ably moved by the right reverend Prelate the Bishop of Gloucester, and I support them. I have to confess that, as she was speaking to each amendment, I was mentally going through the processes I go through as a sentencer. She introduced her comments by talking about probation reports. As I have mentioned, I became a magistrate about 14 years ago, when there were no oral reports, and fast-delivery reports were only just being introduced.  Most of the time, we saw standard reports. There has been an evolution over the last 14 years. There are oral reports, fast-delivery reports and standard reports. In the youth court we have far more enhanced reports, which are 10 to 20 pages long, and in the domestic abuse courts we will be more informed of the family situation when sentencing somebody convicted of a domestic abuse-related offence.
I do support these amendments. The reports put in front of magistrates’ courts and Crown Courts need to be appropriate, and, of course, they need to include the family circumstances of the person being sentenced. The great dilemma, in any system, is to get enough information in a timely manner but not so much that it delays things. I remember that when oral reports were first introduced in magistrates’ courts, we very much appreciated that, because we had experienced probation officers who would interview the offender on the day and come to the court and tell us the various pros and cons of the sentencing options. We knew those probation officers and trusted them to give us a balanced view and guidance on the appropriateness of certain sentences.
That is a good example I have just given. There are, of course, less good examples where we may not have been made aware of the family responsibilities of the person we were sentencing, and there is an absolutely consistent dilemma, whenever one is sentencing, over whether one has a whole picture.
As I say, I support these amendments. This is all based on the data. It is about having appropriate data at the time and about recognising the domestic situation and whether there are responsibilities. Everyone here today has mentioned the position of children, but a lot of people I sentenced also had responsibilities for older parents or other caring responsibilities, and that needs to be taken account of as well.
While I support these amendments, I think more can be done. Reports need to be focused in the right way, and the probation service needs to build on its links with appropriate local social services, as it does when I sentence domestic abuse-related incidents. Much more needs to be done, and I will support the right reverend Prelate if she decides to press her amendments to a vote.

Lord Wolfson of Tredegar: My Lords, this group of amendments relates to primary carers in the criminal justice system. We debated it at some length during previous stages, and, as I noted in Committee, the proposed new clauses have their origins in previous work by the Joint Committee on Human Rights. Let me just take a moment to echo the tribute paid by the noble Baroness, Lady Hamwee, to those who give evidence to that committee and the other committees of this House. While the Government support the principle behind these amendments and have listened carefully to the arguments in support of them, we are still not persuaded that they are necessary.
I will explain the Government’s reasoning regarding each of these proposed new clauses. Amendment 88 would require the Secretary of State to take reasonable steps to collect data centrally and publish it annually on how many people sentenced have parental responsibility for a child or children under the age of 18 or are pregnant.  We have publicly acknowledged the gaps in our current data collection on primary carers in prison and believe that understanding the position in prison is where we should focus our improvement efforts regarding data. This will provide an evidence base to develop policy solutions to offer proper support to primary carers who are imprisoned, and their children.
I am sorry that progress has been so slow, but I am pleased to say that the necessary changes to the basic custody screening tool will be made during the first quarter of the coming year. From that point we will be able to collect data on primary carers in prison and the numbers of their children. An important caveat is that our data collection is necessarily dependent on prisoners declaring the information. Although we do our best to encourage people to provide information, there will always be some people who, for various reasons, do not disclose what the underlying position is. We continue to look at this issue to ensure that our data collection is as good as it can be. I heard the right reverend Prelate say that she would be keen to continue discussions on that point. She knows from previous issues that I am very happy to discuss this with her. I will keep her informed of our progress.
Amendment 88 also refers to collecting data on women who are pregnant when they are sentenced. The Government’s view is that the primary focus should be on those who are pregnant and sentenced to custody. We have already taken steps to acknowledge previous weaknesses in our data collection. We are now collecting and publishing data on the number of pregnant women in prison in the HMPPS annual digest, which contains a weekly average for self-declared pregnancies, and the total number of births to women held in custody over the year, in location categories.
On the closely linked topic of maternity services in prisons, this week I met the noble Baroness, Lady Burt, to discuss the breadth of work already completed and under way to address learning from the appalling “Baby A” case, as per the existing statutory obligations. I am grateful to her for the time that she spent discussing the matter with me. HMPPS has accepted and completed all the PPO recommendations. The PPO’s recommendations for health have either been completed or are in the process of being completed.
This work includes investment by NHS England and NHS Improvement of recurrent funding for an improved maternity service at HMP Bronzefield that will be delivered by Ashford and St Peter’s Hospitals NHS Foundation Trust. All the work that we have completed or are in the process of implementing is set out in a joint action plan that we have submitted to the PPO, and which is available publicly on its website. Nationally, as part of the jointly commissioned women’s estate health and social care review, a perinatal steering group has overseen the development of a pregnancy and post-pregnancy service specification for health and justice commissioners. Publication is anticipated for early next year.
Turning to Amendments 86, 87 and 105, which concern remand and sentencing decisions in cases involving primary carers and pregnant women, I will not repeat the points that I made in Committee, but  we consider these amendments unnecessary, since a series of relevant and adequate considerations for courts making such decisions are set out in relevant case law and sentencing guidelines, and, as I dealt with on earlier groups today, ensure that custody is a last resort in all cases.
The case law and the sentencing guidelines, which the courts have to follow, are clear that courts should give full and proper consideration to the fact that someone is either a pregnant woman or a primary carer. However, without wishing to diminish the importance of their consideration, we have to acknowledge that courts have to consider various and often complex circumstances relating to the offence or the offender. Regrettably, there will be cases where the risks posed by the individual or the seriousness of the offending is such that, despite the existence of dependents, custody is deemed necessary.
I listened carefully to the points made by the noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord German, about recall. In the time that I have had to respond specifically to that point, I can tell them that in the three years from June 2018 to June 2021 there was an 18% decrease in the number of women recalled to custody while the comparable decrease for men was 4%. So I acknowledge that there is an issue on recall and I am happy to continue that conversation, but the position has got better.
However, we are clear that delivering public protection and confidence across the system is not just about the better use of custody. As set out in our female offender strategy, we want fewer women serving short sentences in custody and more being managed in the community. As part of that strategy, we have committed to piloting residential women’s centres, which will offer an intensive residential support package in the community for women at risk of short custodial sentences.
I turn to Amendment 85. As I set out in Committee, current legislation already requires the court to obtain a pre-sentence report in all cases unless the court deems it unnecessary on the facts of the case—for example, if the offender had been before the court three weeks earlier and a pre-sentence report was obtained then. This requirement is reflected in the sentencing guidelines, which courts have to follow. When sentencers request pre-sentence reports, guidance introduced in 2019 mandates probation practitioners to request an adjournment to allow time to prepare a comprehensive pre-sentence report in all cases involving primary carers and for those at risk of custody.
I am keen to reassure the right reverend Prelate that a key objective of this Government’s reforms is to improve both the quality and the prevalence of pre-sentence reports in the justice system. We heard first-hand experience from the noble Lord, Lord Ponsonby, about the quality of pre-sentence reports, which can be extremely good. We want to ensure that that quality is consistently good.

Lord Ponsonby of Shulbrede: I think the point I made is that they are extremely variable.

Lord Wolfson of Tredegar: I am looking at the glass as half full. I acknowledge their variability but we want to improve their standard across the  board. It is a little simplistic, if I may respectfully say so, always to assume that a written report is better than an oral report. I know the noble Lord was not making that point but I have heard it elsewhere. He was quite clear from his experience that a good oral report may be better than a written report.

Lord Ponsonby of Shulbrede: If appropriate.

Lord Wolfson of Tredegar: If appropriate, exactly; it all depends. The sentencers have experience of the nature of the reports that are appropriate in each case.
On that point, we acknowledged in our sentencing White Paper that pre-sentence reports have decreased over the last decade. We specify in the White Paper that, although we do not propose to alter current judicial discretion, we want to build the evidence base around pre-sentence reports. We therefore commenced a pilot scheme in 15 magistrates’ courts in May this year, in collaboration with the judiciary and HMCTS. It strategically targets female offenders, and some other cohorts, for fuller written pre-sentence reports. The process evaluation will be published in autumn next year and will give us the evidence base to drive improvements in pre-sentence reports and make future decisions. We want to preserve a balance between the current legislation and sentencing guidelines and the independence of judicial decision-making. We very much hope and expect that that pilot scheme, which takes into account operational considerations in the courts as well, will enable us to improve the position significantly.
I hope that what I have said—I hope not at too great a length—will persuade the right reverend Prelate and noble Lords that the Government share the concerns underpinning these amendments and, importantly, that existing law and practice, together with the action we are already taking, make these amendments unnecessary. I invite the right reverend Prelate to withdraw the amendment.

Bishop of Gloucester: It is good to hear what the Minister has to say. Some of those points were things that I challenged when I talked about the mandatory comments on PSRs. It was good to hear the Minister say, “We want to improve things; we want to improve the quality”. This amendment would ensure that the “I want” becomes something in legislation. I would go back as far as the Farmer review, where, even then, the issue of the potential for inconsistency in PSRs was raised.
There is still a gap between what is being said and the evidence. For that reason, although I know it is late, I would like to test the opinion of the House. This amendment would not in any way compromise the decision-making discretion of judges but, I hope, would be useful in assisting judges by ensuring that they have all the right information. Although it is late—I cannot help that—I would like to test the opinion of the House on Amendment 85.
Ayes 30, Noes 79.

Amendment 85 disagreed.
Amendments 86 to 88 not moved.

  
Clause 133: Youth remand

Amendment 88A

Lord Ponsonby of Shulbrede: Moved by Lord Ponsonby of Shulbrede
88A: Clause 133, page 126, line 35, at end insert—“(8) After section 102, insert—“102A Centralised monitoring of court decisions to impose youth custodial remand (1) Within six months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed, the Secretary of State must nominate a body to collect, analyse and publish data on the decision-making process of courts when sentencing a child to custodial remand.(2) “Decision making process” refers to the consideration and application of the required Conditions for the custodial remand of children by the court, as set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.(3) A report on the findings must be laid before Parliament and published on an annual basis.(4) The first report must be published and laid before Parliament no later than 18 months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed.””

Lord Ponsonby of Shulbrede: My Lords, we have been talking about data, and this is another example of collecting data, because the fear is that different parts of the country will remand children in different ways. The bail decisions for youth are a complex set of decisions; they are different as for adults, and it is absolutely and invariably the most difficult decision that any judge or magistrate will make. I can see that it would be easy to have different standards in different parts of the country, and that is the main purpose of this amendment. What I have just said is my subjective view but, of course, unless the data is collated in some way, it is only my subjective view. This is about complexity and a lack of consistency, and it is information on which the Ministry of Justice should really have a view on.
Amendment 89 seeks to raise the age of criminal responsibility from 10 to 12. The current Labour Party policy, which I agree with, is that it should remain at 10. I have been a youth magistrate for 12 years, and I have never seen a 10 or 11 year-old in court. It does happen, of course, but from what I understand is that it happens only in the very most serious cases; only in very extreme cases would anyone that young ever get to court.
Moving on, Amendment 90 says that:
“Within 12 months of the passing of this Act, the Secretary of State must complete a review of the age of criminal responsibility.”
Obviously, that is linked with Amendment 89. Of course, Scotland has regularised its new age of criminal responsibility to 12. For many years, the age of criminal responsibility in Scotland was eight but in practice it was only ever administered at 12. I understand that the rules have changed in Scotland so now it is 12. That raises an interesting question about what would happen if an 11 year-old was living in Scotland but committed a crime in England. How would that youth  potentially be brought to justice in England when what they had been alleged to have done would not have been an offence in Scotland? I am sure there will be an appropriate way of dealing with that situation. Nevertheless, the Labour Party’s view, and my view, is that the age of criminal responsibility should remain at 10. I beg to move.

Baroness Chakrabarti: My Lords,
“No child should suffer such appalling abuse, especially from those who should love and care for them most.”
Who said that? It is not a Christmas quiz. It was the Minister repeating a sentence what feels like a long time ago, but it was earlier this evening in proceedings on this Bill in your Lordships’ House. What if the same child victim of cruelty or neglect survives and grows to act out as a damaged little person as a result of that neglect or abuse?
I am very disappointed to hear about my own party’s position on the age of criminal responsibility, not least because I was reading David Lammy’s comments in the Guardian just a couple of years ago in relation to concern that our age of criminal responsibility, at 10, is too young. I think that we as a society are failing some of our most vulnerable children, including victims of neglect and abuse, and we should not be criminalising them. Given what we know about child development, 10 is way too young. It makes us as a jurisdiction an outlier in the civilised world and that is not something to be proud of.
Perhaps understandably, much of the debate in Committee focused on some of the most notorious cases, including that of Thompson and Venables, but such horrific and notorious cases are few and far between. More often, we are talking about offences such as criminal damage, and it is often looked-after children who are criminalised for offences of that nature. They have already been let down in their lives by their natural parents and/or their adopted parents and are looked after by the state. They then get involved in something that is treated as criminal damage in a care environment and for which neither noble Lords’ children and grandchildren nor mine would ever be criminalised.

Lord Ponsonby of Shulbrede: I have dealt with that exact point in my time as a youth court magistrate. It is not just children aged 10 or 11. In the past few years—let us say the past five years—I have never seen any child brought to court for criminal damage in their care home. They used to be brought to court because it was an insurance-related issue and a conviction was needed to get the insurance money, but that has been resolved as an issue. In my experience, care homes do not charge their children for criminal damage.

Baroness Chakrabarti: I am grateful to my noble friend; obviously I do not have his personal experience as a magistrate but just today I looked at published statistics from 2018, which showed that a small number of children were criminalised for criminal damage.
Whether children end up in court or not, if they have criminal responsibility, they can be criminalised. They may never get to court—they may accept an  out-of-court disposal—but they will be criminalised and will potentially have a conviction that follows them around for a very long time. This is amoral; it is not the way to treat a vulnerable little person who has probably been neglected and/or abused. They are not ready for criminal responsibility—they are not responsible. All the scientific evidence suggests that their brains are not developed enough at the age of 10.
We weep hot tears for these children when we see them as victims of abuse and neglect, but we do not do so when some of them manage to survive but act out in ways that children will. Some children will never be criminalised for minor theft or criminal damage because they have the protection of their privilege. Other children will sometimes be criminalised, which is wrong in principle and says something very embarrassing about this jurisdiction—even compared with the neighbouring jurisdiction north of the border, as my noble friend pointed out. I do not want to repeat what I said about this in Committee, but I thank and pay tribute to the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Dholakia, who have campaigned on this issue for many years to stop us being an outlier in the world.
I note that next year my noble friend Lord Adonis will bring forward a Private Member’s Bill to lower the voting age from 18 to 16—something I will support but I suspect the Government will resist. The Government will insist on 18 for voting purposes and the age of majority, and perhaps take the view that children and young people are not mature enough to vote until they are 18, but heap criminal responsibility on them at the age of 10. That is a mismatch of eight years. Of course. children and young people—indeed, all people—develop slightly differently. Personally, in an ideal world, I would support 16 as a decent compromise. However, that is not the point.
The amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Dholakia, to which I have added my name, settles on just 12. I am afraid that the fact that neither the Government nor my own party can support that, despite report after report from the UN on the UN Convention on the Rights of the Child, is an embarrassment. We are choosing some children over others. These difficult issues about children and criminality are always about other people’s children. However, the difference between believing in and promoting human rights and not doing so is whether you care about other people’s children, and not just at Christmas—and not determining, as a noble and learned Lord said earlier, who is naughty or nice but caring for everyone’s children and all children.
With that, I will spare your Lordships any more of my thoughts on this issue—I feel very strongly about it. I wish your Lordships and your children and grandchildren a very good Christmas when it comes.

Baroness Bennett of Manor Castle: My Lords, it is a great pleasure to follow the noble Baroness, Lady Chakrabarti, and I agree with every word she just said. She noted that the UK is an outlier in the world in having an age of criminal responsibility of 10. However, I notice that my native Australia is now in the middle of the process of looking to raise its age  from 10, which I think was inherited from UK law. With that development in Australia, we will be even more of an outlier.
I shall speak to Amendment 90, which appears in my name, but I stress that this is not in any way meant to compete with Amendment 89. I would support Amendment 89 but, like the noble Baroness, Lady Chakrabarti, I think it does not go far enough. My idea of a review is that if you were to hold a review, as the Justice Committee in the other place recommended last year, you would arrive at a figure higher than 12. Fourteen is the obvious one.
I apologise that I was not available to present the corresponding amendment in Committee because I was at the COP 26 climate talks. However, I thank my noble friend Lady Jones of Moulsecoomb for doing a great job of presenting it then, and the noble Baroness, Lady Chakrabarti, for supporting me at that stage. I also apologise for an administrative oversight on my part. There was extensive debate on the wording of proposed new subsection (2)(b). It was my intention to change the wording but I am afraid I did not. However, I hope noble Lords will look at the overall intention of this amendment rather than getting into the depths of discussion on the detail of the wording, since I have no intention of pressing this amendment to a vote tonight.
In particular, I want briefly to draw attention to proposed new subsection (4) in this amendment:
“The panel must consult with an advisory panel made up of young people currently and formerly in the youth justice system.”
There is a principle there that we should be following much more: people who have the lived experience of knowing what it is like to be the subject of the system have to be listened to, and we have to understand what the lived experience is like.
There is a risk in the situation I find myself in of thinking that everything has been said but not by me. I will try very hard not to do that. Rather than repeat all the arguments made in Committee, I will pick up one sentence said then by the Minister in response to the noble and learned Lady, Baroness Butler-Sloss:
“I have sought to set out why we believe that 10 is the correct age, given the way that our criminal justice system deals with children.”—[Official Report, 17/11/21; col. 263.]
In that context, I point to comments made by the former Children’s Commissioner, Anne Longfield, in late 2019. She called for a wholesale review of the youth justice system, saying that the youth court was
“not a child-friendly environment where you could really help a young person and is not meeting standards that we had hoped.”
I will give some statistics from the end of 2019. I hope the Minister can tell me that these have got better but, knowing everything I do about the state of the court system during Covid, I doubt that they have. Cases involving children were taking 40% longer than they did in 2010, with the slowest region, Sussex central, taking 491 days on average to deal with a child’s case. Reoffending rates for children were higher than they had been 10 years before, with more than 40% of children committing an offence within a year of being convicted or cautioned. That is nearly double the rate for adults. Picking up a point made by the  noble Baroness, Lady Chakrabarti, the proportion of children receiving a youth caution or sentence who were black, Asian or minority ethnic had almost doubled since 2010 from 14% to 27%.
The Minister may say that the number of children being dealt with by the courts has gone down significantly. What experts say in response is that the children coming before courts now are much more those who come from the most dysfunctional and chaotic families —or who were taken into care after having been in that environment—where drug and alcohol misuse, physical and emotional abuse and offending are common. They do not need judgment; they need help. They are children who have already been failed by our society and putting them into the criminal justice system—I fully acknowledge that individuals within the criminal justice system do their best for these children—is not the right place.
In Committee the Minister said that the Government do not accept that they are breaking the UN Convention on the Rights of the Child, but I cannot see how that can be squared with the declaration by the UN Committee on the Rights of the Child that 14 should be the minimum age of criminal responsibility.

Lord Ramsbotham: My Lords, I support Amendments 89 and 90. I endorse what the noble Baroness, Lady Chakrabarti, said. Thompson and Venables, the murderers of Jamie Bulger, although 10 at the time, had a developmental age of only four, which makes their High Court trial obscene. The noble Lord, Lord Dholakia, is to be praised for persistently trying to raise the age of criminal responsibility through a succession of Private Members’ Bills.

Lord Paddick: My Lords, prompted by the words of the noble Baroness, Lady Chakrabarti, I was reminded of a visit I made to the only young offender institution in Scotland, where we had the opportunity to speak to young people in custody there, the staff and the governor. They talked about how, without exception, those in custody had been subjected to a range of adverse childhood experiences. What came across from both the young people and the staff was that, even though those young people were aged 16 and over, it was not their fault that they found themselves in those situations; it was the adults and support mechanisms that had let them down. Moving the age of criminal responsibility from 10 to 12 is a move in the right direction and the minimum that should be done at this time, which is why I wholeheartedly support the noble Baroness.

Earl Attlee: My Lords, I rise briefly to support the noble Baroness in Amendment 89, for the reasons she has outlined. I think the noble Lord, Lord Ponsonby, in this Report stage seems to get the short straw every time. I have a question for my noble friend the Minister about the role of the CPS when deciding to prosecute. It has to apply the test of public interest. Is the very young age of a defendant a proper consideration for the CPS when making that public interest test?

Lord Dholakia: My Lords, Amendment 89 is also in the name of the noble and learned Baroness, Lady Butler-Sloss, who cannot be with us today but  has faithfully promised to support it. I have a Private Member’s Bill on this same subject which is awaiting its Second Reading. Suffice to say, on at least two previous occasions, it has gone through all its stages in this House, but the general election intervened last time and halted its progress. Let me assure the House that the Bill is not going to be put into the long grass. I will come back again and again until we find some success in its implementation.
I also thank the noble Baroness, Lady Chakrabarti, for her support of this amendment, the noble Lord, Lord Ramsbotham, for his kind words, and my noble friend Lord German, who took up this issue in Committee when I was hospitalised on that particular day.
The amendment is designed to raise the country’s unusually low age of criminal responsibility from 10 to 12. At present in England and Wales, children are deemed to be criminally responsible from the age of 10. This provision was last amended over 50 years ago, in 1963, when the age of criminal responsibility was raised from eight to 10 by the Children and Young Persons Act of that year. This means that children who are too young to attend secondary school can be prosecuted and receive a criminal record. A 10 year-old who commits a “grave crime”, which includes serious, violent and sexual crimes but can also include burglary, will be tried in an adult Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the Crown Court.
The age of criminal responsibility in the United Kingdom is the lowest in Europe. In Ireland, in 2006 the age was raised to 12, with exceptions for homicide, rape or aggravated sexual assault. Even in Scotland, where the age of criminal responsibility is particularly low at eight, legislation in 2010 provided that children cannot be prosecuted below the age of 12. Outside the British Isles, the age of criminal responsibility is invariably higher: in Holland it is 12; in France it is 13; in Germany, Spain, Italy, Austria, Hungary, Bulgaria, Slovakia, Slovenia, Croatia and Romania it is 14. In most European countries it ranges between 14 and 18. Across Europe, the average age is 14.
The United Nations Committee on the Rights of the Child has repeatedly stated that our minimum age of criminal responsibility is not compatible with our obligation under international standards of juvenile justice and the UN Convention on the Rights of the Child. In a statement in 1997 the committee said:
“States parties are encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level”.
In subsequent reports in 2005 and 2007, the committee reiterated that a minimum age below 12 is not internationally acceptable. Recently the committee recommended that the UK should
“raise the minimum age of criminal responsibility in accordance with acceptable international standards”.
Taking 10 to 11 year-olds out of the criminal justice system will not mean doing nothing with children who offend. It would mean doing what other countries do with 10 and 11 year-old offenders; it would mean doing what we do with delinquent nine year-olds.  In other words, it would mean dealing with the causes of these children’s offending through intervention by children’s services teams.
In the majority of cases where court proceedings are necessary, it would mean bringing children before family court proceedings, which can impose compulsory measures of supervision and care. In the most serious cases this can mean detention for significant periods in secure accommodation, but this would be arranged as part of care proceedings, rather than as a custodial punishment imposed in criminal proceedings.
Those who oppose increasing the age of criminal responsibility often argue that children of 10 to 12 are capable of telling right from wrong, as though it automatically follows that they should therefore be dealt with in criminal courts, but this does not logically follow. Most six year-olds have a sense of right and wrong, but no one suggests that they should be subject to criminal prosecution. In 2012, the Centre for Social Justice, which was set up by the former Secretary of State for Work and Pensions, Iain Duncan Smith, produced a report on the youth justice system entitled Rules of Engagement: Changing the Heart of Youth Justice. It said:
“There is now a significant body of research evidence indicating that early adolescence (under 13-14 years of age) is a period of marked neurodevelopmental immaturity, during which children’s capacity is not equivalent to that of an older adolescent or adult. Such findings cast doubt on the culpability and competency of early adolescents to participate in the criminal process and this raises the question of whether the current MACR, at ten, is appropriate.”
The evidence from international research is overwhelming. There is extensive evidence from neuroscientists, psychologists and psychiatrists demonstrating the developmental immaturity of young children. The Royal Society, in its report Neuroscience and the Law, concluded in 2011 that,
“it is clear that at the age of ten the brain is developmentally immature, and continues to undergo important changes linked to regulating one’s own behaviour.”
The Royal College of Psychiatrists has expressed the view, based on similar evidence, that our age of criminal responsibility is too low. The research shows that children of 10 and 11 have less ability to think through the consequences of their actions, less ability to empathise with other people’s feelings, a greater level of impressionability and suggestibility, and less ability to control impulsive behaviour. So while 10 year-olds may know that stealing something is wrong, their ability to apply that knowledge to their actions will be very different from that of an 18 year-old. This does not mean that children aged 10 or 11 have no responsibility for their actions, but on any reasonable interpretation of the evidence they must be regarded as less responsible than an older adolescent or an adult. It cannot be right to deal with such young children in a criminal process which assumes a capacity for mature, adult-like decision-making.
The Beijing rules on juvenile justice state that the age of criminal responsibility,
“should not be set at too low an age level, bearing in mind the facts of emotional, mental and developmental immaturity.”
The official commentary to the rules states that,
“there is a close relationship between the notion of responsibility for delinquent and criminal behaviour and other social rights and responsibilities”.
It is therefore significant that in no other area of the law, whether it is the age for paid employment, the age for buying a pet, the age of consent to sexual activity, or the age for smoking and drinking, do we regard children as fully competent to take informed decisions until later in adolescence. The age of criminal responsibility is an anomalous exception. In relation to the age of consent to sexual activity, for example, we regard any purported consent as irrelevant in order to protect children from abuse or immature sexual experimentation. It is completely illogical that we regard immaturity in this context as worthy of protection by law, but we take a diametrically opposite approach when it comes to criminal responsibility.
A 30 year-old with the mental age of a 10 year-old child would probably be regarded as unfit to plead, so why do we see a child of 10 as capable of participating in the criminal justice process? The illogicality of our current law is increasingly recognised. The Law Commission concluded in its report Unfitness to Plead that the age of criminal responsibility is not founded on any logical or principled basis and that
“there may be sound policy reasons for looking afresh at the age of criminal responsibility”.
In Northern Ireland an independent review commissioned by the then Minister of Justice in 2011 recommended an immediate increase in the age of criminal responsibility from 10 to 12, and a further scoping study made a similar recommendation. In Scotland an advisory group recommended that there should be an immediate increase in the age of criminal responsibility from 10 to 12.
It is sometimes argued that there is no need to raise the age of criminal responsibility because the number of 10 and 11 year-olds who receive youth justice disposals is small: in 2015-16 a total of 360 were cautioned or convicted. Even though this represents a small proportion of those going through the criminal justice system, what happens to more than 300 vulnerable children can hardly be regarded as unimportant. The fact that the numbers involved are relatively small is, in fact, a strong argument for the amendment. It means that it will not be a huge burden in terms of resources to make alternative provision through welfare interventions and, where necessary, family court proceedings for the children who would otherwise have been charged and prosecuted.
Nor would dealing with children through non-criminal processes put the public at risk. On the contrary, dealing with 10 and 11 year-old children through non-criminal procedures would be more effective than using any criminal justice process. The evidence shows that children dealt with through the criminal justice process are more likely to reoffend than those diverted from the criminal justice system and dealt with in other ways. Children officially labelled as offenders often react by trying to live up to the label and acting in increasingly delinquent ways to achieve status in front of their friends.
A briefing on my previous Bill was circulated by the Criminal Justice Alliance, which has a membership of 125 organisations involved in the criminal justice system. The briefing concludes that with the numbers so low,  the resources needed to execute a shift towards treating these vulnerable children through a welfare lens, rather than the criminal justice system, would be small, while the benefits for them and for wider society would be very considerable.
As the Centre for Social Justice report put it, raising the minimum age of criminal responsibility
“would achieve important changes. Young children would not be tarred with the stigmatising ‘offender’ label, which, the evidence shows can exacerbate delinquency, and would more likely have their victim status and welfare needs addressed, which the evidence suggests are currently often neglected.”
Children who go through the criminal process at a young age are often young people from chaotic, dysfunctional and traumatic backgrounds involving a combination of poor parenting, physical or sexual abuse, conflict within families, substance abuse or mental health problems. The prospects for diverting the child from offending will be far better if these problems are tackled through welfare interventions, rather than by imposing punishments in a criminal court. A welfare approach would avoid unnecessarily giving children a criminal record, which can make it harder for them to gain employment when they reach working age. As unemployment increases the chances of reoffending, this is another way in which criminalising children can increase rather than reduce the likelihood of future crime.
Of the 10 and 11 year olds who are charged and prosecuted each year, very few receive a custodial sentence—in some years none does. But although the number of serious child offenders is small, the public will obviously want to be assured that raising the age of criminal responsibility will not increase the risk from these young people.
Some people who generally support raising the age of criminal responsibility argue that an exception should be made for the most extreme cases, such as homicide or serious sexual offences. It is difficult to see the logic of this approach. The most serious child offenders invariably have the most complex welfare needs. Their backgrounds include: experience of serious physical abuse, sexual abuse, emotional abuse and neglect; parental mental illness; rejection and abandonment by adults; traumatic loss; conduct disorders; and serious emotional disturbances. They need a welfare-based approach—in secure care if necessary—to help them face their unresolved trauma, to develop and mature emotionally, to reach an appropriate sense of guilt, and to learn to control their emotional and aggressive behaviour.
The boys who killed James Bulger, who were rightly mentioned by the noble Lord, Lord Ramsbotham, were aged 10 at the time of the killing and 11 when they were tried. Most foreign commentators were amazed that children of that age should be tried in an adult Crown Court. They questioned whether such young children could really understand the complexity of a lengthy criminal prosecution and trial, whether they should have appeared in the full glare of media coverage, whether they understood all the issues and the language of the trial, whether they could give sensible instructions to their lawyers, and whether their decision not to give evidence was simply due to being frightened of speaking in such a setting.
Even though some changes have been made to court processes involving children since then, it remains true that exposing such young children to a criminal trial is no way to achieve justice. Moreover, the case took nine months to come to trial, during which time the defendants received no treatment or therapeutic help in case it prejudiced their pleas. This is a completely unacceptable way to deal with young defendants and one that would be unthinkable anywhere else in Europe. It should be equally unthinkable in the United Kingdom. The two boys should have been dealt with in family proceedings and detained in secure accommodation without all the ill effects that resulted from a public Crown Court trial.
I commend my amendment to the House. If it were to become law, it would represent an important step towards dealing with child offenders in a way that was more humane, more in line with the reality of children’s development and more effective than our current approach in addressing the environmental and welfare needs that cause the offending. This is one of the shortest amendments I have introduced, but, if implemented, it will change the shape of the criminal justice system for our children.

Baroness Blower: My Lords, it is late, and I have very little to add to this debate, since it has already been extensively outlined by the noble Lord, Lord Dholakia, and other speakers, save this. I have extensive experience of working with educators from many jurisdictions, including all those mentioned by the noble Lord, Lord Dholakia, and many beyond. Some will have, as I have myself, worked with a small number of 10 year-olds who, for a variety of reasons usually to do with adverse childhood experiences, behave in ways that are exceedingly difficult to manage—and some can, under certain circumstances, become aggressive or violent. But what I know is that educators from all those jurisdictions, in general, understand that 10 is simply too young to be an age of criminal responsibility, and many from the countries mentioned by the noble Lord, Lord Dholakia, and many others are astounded it is 10 in England.
Ten year-olds, as my noble friend Lady Chakrabarti has said, need to be nurtured if they have hitherto had circumstances in their short lives that have damaged them seriously. In my own view, 12 is still too young to be an age of criminal responsibility, and had the noble and learned Baroness, Lady Butler-Sloss, been able to be in her place tonight, she would certainly, I am sure, have listed all the jurisdictions that have an age significantly above 12, as well as notably, as referenced by the noble Baroness, Lady Bennett, the UN Convention on the Rights of the Child. But it is the case that a move from 10 to 12 would be a move in the right direction, and I hope the Government will consider this seriously.

Lord Wolfson of Tredegar: My Lords, we have two amendments before us in the sense of concept. I will take Amendment 88A first and then Amendments 89 and 90 together—they raise quite discrete issues.
Amendment 88A is twofold. It requires the centralised monitoring of youth remand decisions made by the court and the laying of a report of findings before Parliament on an annual basis. On centralised monitoring,  as I made clear in Committee, courts will now be required to provide the reasons for their decision in writing. This will be provided to the child, their legal representative and the youth offending team, and it goes beyond what courts already do at present. The record will therefore provide qualitative information, which is not currently readily available. That will enable us and partners in the criminal justice system to understand and better monitor the reasons given for the use of custodial remand.
However, those decisions are complex. We should not prescribe in law at this time how the information should be collected and processed. I am also mindful not to impose unrealistic burdens on operations. As I have indicated previously, HMCTS is also currently designing a new digital case management system, which will deliver better data capturing and reporting. We will consider the best way to collect, analyse and, if appropriate, publish that information.
On the second point, as I explained in Committee, my department already regularly publishes statistics on remand: youth justice statistics are published annually; youth custodial statistics are published monthly. I hope the noble Lord, Lord Ponsonby, will agree that our objectives are in fact aligned here, and understand the need for pragmatism at this time. I therefore urge him to withdraw Amendment 88A.
Amendments 89 and 90, spoken to by the noble Baroness, Lady Chakrabarti, would raise the age of criminal responsibility from 10 to 12 years and require a review of the age of criminal responsibility. As I have said before, the primary objective of the youth justice system is to prevent children offending in the first place. Where it occurs, we must provide the police and courts with effective tools to tackle offending. That is why we believe that setting the age of criminal responsibility at 10 is the correct response. It provides flexibility in dealing with children and allows for early intervention with the aim of preventing subsequent offending.
Importantly, having the age of criminal responsibility at 10 does not preclude other types of intervention where they would be a better and more proportionate response. This could include diversion from the criminal justice system in the first place. I can answer with a simple “yes” my noble friend Lord Attlee’s question about whether the age of the child is taken into account by the CPS as part of the public interest test. Diversion from the criminal justice system is happening in practice. There has been a dramatic fall since 2009 in the number of children aged between 10 and 12 years in the youth justice system. We want that downward trend to continue.
As I said in Committee, no 10 or 11 year-old has received a custodial sentence since 2010. The noble Lord, Lord Ponsonby, talked about never seeing a 10 or 11 year-old in court. In response to the specific point about criminal damage or arson, in 2020, 171 children were proceeded against for either criminal damage or arson. Of those, the number aged either 10 or 11 was zero. We discussed the appalling Bulger case in Committee. It is a rare case, but it is important that when awful cases such as that arise, we have the correct mechanisms to deal with them.
The fact is that there are a range of approaches across Europe—and the wider world—to the age of criminal responsibility. Other European countries also have an age of criminal responsibility set at 10. The noble Baroness, Lady Blower, said that she was astounded that we had the age of 10, but so does Switzerland—not a country one normally associates with human rights breaches—and I suggest that neither Switzerland nor the UK is in contravention of our international obligations.
In the Republic of Ireland, as I think the noble Lord, Lord Dholakia, mentioned, children aged 10 and 11 can be prosecuted for the most serious offences, such as murder or rape, although it is fair to say that the general age of criminal responsibility there sits higher, at 12. There can therefore be reasonable differences of opinion. I take issue with the noble Baroness, Lady Chakrabarti, when she says it is about whether or not you care about other people’s children. Switzerland cares about other people’s children, as does this country. We have set the age of criminal responsibility at 10.
In response to the specific, private international law seminar question put to me by the noble Lord, Lord Ponsonby, about, I think, a Scots child who comes to England, the short answer is that you will be subject to the criminal law in the jurisdiction where you are present when you commit the offence. I will check but I am not going to get into extradition now, especially as it is intra-UK and even more so because it is after 11.15 pm. Let us leave the seminar there, but that is a short answer to the question.
It is therefore not as simple as saying that our age of criminal responsibility should be the same as that in other countries; countries differ. The age of maturity of the child is considered at all stages of the youth justice system in England and Wales, as I said, from the decision to prosecute in the first place through to the most appropriate sentencing outcome and then, if there is a sentence, to supporting the child in completing that sentence and moving towards a life beyond crime. We believe the current age is appropriate and there is no need to either change or review it.
I shall briefly pick up two other points. First, the noble Baroness, Lady Bennett of Manor Castle, rather threw a load of statistics at me. I will have to look at the Official Report and send her a note on those.
As for voting age, it is very tempting to get into that debate even at this late hour but I respectfully suggest that it would be to mix apples and iPads; they are completely separate topics. I therefore urge the noble Lord to withdraw his amendment.

Baroness Bennett of Manor Castle: The Minister referred to the diversion of young people who might end up in the criminal justice system but are sent down other paths. Can he tell me, either now or in the future—I understand that he may not have the figures to hand—whether the Government have statistics on the demographic characteristics of which children get diverted and which go into the criminal justice system? I am aware that I recited quite a few figures, but they show that there is a greatly increased percentage of  children from certain backgrounds who seem to end up in the criminal justice system, which suggests that diversion is working for some but not for others.

Lord Wolfson of Tredegar: I am happy to respond in writing a little more fully, but I can say—with the caveat that I absolutely share concerns about ethnicity proportions in the youth justice system, and indeed through the criminal justice system generally—that the number of black, Asian and minority ethnic children entering the youth justice system for the first time fell   in the decade between 2009 and 2019 by 76%. So there is progress but there is still work to be done. I will look at the Official Report and write with anything further.

Lord Ponsonby of Shulbrede: I beg leave to withdraw the amendment.
Amendment 88A withdrawn.
Amendments 89 and 90 not moved.
Consideration on Report adjourned.
House adjourned at 11.19 pm.